新株引受權의 硏究 = A Comparative Study of the Preemptive Right to New Shares

다국어 초록 (Multilingual Abstract)

This article analyzes the shareholder's prior right to subscribe new shares under the Korean Commercial Code to clarify the statutory meanings and to evaluate the relevant provisions from the legislative point of view. For this purpose, foreign haws and trends on the subject have been considered.
The preemptive right is of great importance to maintain the existing proportion of share ownership and also to protect the rights of shareholders to corporate assets. Yet, such a right can reduce the flexibility in acquiring additional capital. Thus, depending upon which objective should override the other, some countries expressly provide for the preemptive right in their codes while others reject it. In civil law countries, the preemptive right, though assured by statute, is made subject to certain exceptions to achieve a proper balance between the two objectives. In Anglo-American countries, a trend toward limitation of the preemptive right is seen as share ownership is dispersed and the kinds of shares are diversified. The Japanese Commercial Code, revised in 1950, 1955, and 1966 after the pattern of American corporation law, denies the preemptive right as a rule.
The Korean Commercial Code, however, grants the shareholders the preemptive right unless otherwise provided in the charter, despite of the fact that the Korean Commercial Code has adopted many features of American corporation law. The write feels that such a policy is proper in view of the facts that Korean corporations rarely have the complicated capital structure consisting of several classes of shares and that the directors do not owe fiduciary duties to the shareholders. The provision on the premptive right in the Korean Code would have been better to specificially provide that the preemptive right may be limited by the resolution of the shareholders meeting rather than, as in the Code, to have an abstract provision that the right may be limited by the charter. It is desirable to require the resolution of the shareholders meeting before new shares may be offered to third persons. The article also offers some legislative suggestions in order to eliminate the confusion that arises from the absence of the provisions regarding assignment of the preemptive right and disposition of fractional shares.