전환권 행사로 발행된 신주에 관한 신주 발행의 무효 사유와 무효 사유에 따른 쟁송 방법

Reasons for invalidation of the issuance of new shares issued by the exercise of the right to convert and the method of dispute based on the reason for invalidation: Focusing on the commentary on the Supreme Court's sentence of 2021Da205650 on November 17, 2022

The target judgment is that if there is a reason for invalidation in the issuance of convertible bonds, a lawsuit for invalidation of the issuance of convertible bonds may be filed, but after the filing period, the lawsuit for invalidation of the issuance of new shares cannot claim the reasons related to the issuance of convertible bonds, and only unique reasons for the exercise of convertible rights and the resulting issuance of new shares may be asserted. However, since the right to convert is a formative right, it is not easy to assume that there is a reason for invalidation in the exercise of the right to convert and the resulting issuance of new shares because new shares are issued without having to meet other requirements as long as the expression of intention to claim the conversion reaches the company. Defects in the exercise of conversion rights and the resulting issuance of new shares can be assumed, for example, if a convertible creditor issues new shares even though there is no intention of requesting conversion, if the party exercises the conversion right after the conversion claim period, or if the company misrepresents the conditions of the conversion and miscalculates the number of shares issued. Considering that such reasons are difficult to occur in practice, and that even if there is such a defect, it must be so serious that it is contrary to the nature of the stock company or the basic principles of the company law that it can be a reason for invalidation of the issuance of new shares, it is very difficult to win a victory after the party filed a lawsuit to invalidate the issuance of new shares due to the exercise of the right to convert and the resulting issuance of new shares. If new shares are issued due to the exercise of conversion rights, most of the reasons for invalidation of the issuance of new shares stem from the issuance of convertible bonds. The target judgment also recognizes exceptions when there are special circumstances in order to overcome the problem that the party's right to file a complaint is excessively reduced. Citing the legal principles mentioned in bonds with underwriting rights sentenced just before the target judgment was sentenced, the ruling recognizes an exception that “if a convertible bond is issued to a third party for the purpose of defending the management rights of major shareholders, and then a major shareholder acquires new shares by exercising the right to convert.” In this case, it is practically the same as issuing new shares to major shareholders for the purpose of defending management rights, and in reality, the issuance of new shares will infringe on shareholder rights or change governance structure of existing shareholders. The target judgment suggests that the criteria for the exception were issued to a third party for the purpose of defending the management rights of major shareholders, etc., and that the major shareholders, etc. exercised the right to convert by taking it over. I would like to examine whether the attitude of this subject judgment is reasonable and further examine the method of dispute for new shares issued due to the exercise of the right to convert.