자기주식을 활용한 자금조달에 대한 법적 통제- 최근 교환사채 발행 분쟁 사건을 글감으로 하여 -

The recent surge in large-scale Exchangeable Bond (EB) issuances utilizing treasury stock (TS) in the capital market stems from companies' moves to preemptively raise capital ahead of discussions on mandating the cancellation of TS acquired under the pretext of enhancing shareholder value. Although not nominally a new share issuance, this capital-raising method entails the revival of voting rights upon exchange, functionally resembling a large-scale third-party allocation of new shares, which continuously raises concerns about general shareholder value impairment. This issue has become a major topic of debate regarding the legitimacy of capital raising using TS and the necessity of its legal control, especially since the duty of loyalty of directors to shareholders was introduced into the Commercial Act in July 2025. This paper clarifies the limitations of the current legal control by analyzing a recent preliminary injunction case against EB issuance (Seoul Central District Court Decision 2025kahap21210). The court denied the analogical application of legal principles related to preemptive rights and maintenance claims for new shares, refusing to treat TS disposal as equivalent to new share issuance. Instead, it recognized the disposal as a profit-and-loss transaction, not a capital transaction, falling within the board of directors' broad business judgment rule. This judicial stance confirmed that general shareholders lack sufficient legal grounds under current law to intervene in or restrain TS disposal despite the risk of substantial share dilution. The paper identifies the root cause of this dispute in the structural flaw of the TS system following the 2011 amendment to the Commercial Act. While the amendment liberalized TS acquisition within the scope of distributable profits, the absence of subsequent regulations on the holding limit, disposal methods, or cancellation mandate has caused TS to lose its original purpose of shareholder return. Consequently, TS has a high risk of being misused as an ‘all-purpose capital raising and management defense tool’ at the convenience of management. Long-term holding of TS without cancellation is a key factor that deepens the inefficient operation of capital and distortion of the corporate governance structure. Furthermore, the newly introduced regulation on the director's duty of loyalty to shareholders also has structural limitations in resolving this issue. The duty of loyalty fundamentally requires equitable treatment of shareholders in situations of conflict of interest between controlling and minority shareholders. However, share dilution caused by EB issuance is easily considered a ‘general loss’ that affects all shareholders proportionally. Thus, it is difficult to conclude that this constitutes a breach of the duty of loyalty based on the sacrifice of specific shareholders, limiting its function as a control norm that restricts the directors' business judgment. In conclusion, to secure the effectiveness of shareholder value protection and prevent the distortion of corporate governance from TS misuse, the paper proposes that clear and specific institutional control measures for TS disposal, such as establishing holding limits and mandating cancellation, must be urgently implemented through legislation, even while acknowledging the freedom of TS acquisition.