방어적 주식제도의 국제적 입법동향과 도입 과제 - 2006년 회사법 개정안을 중심으로

Some kinds of stocks are newly introduced in the 2006 revising draft of corporate law for easy capital raising and defending corporate control attacks. But the draft restricts the abuse of issuing the stocks with right of veto and class voting stocks by permitting them to be done only in case where the initial incorporation articles provide or all of shareholders agree unanimously. Moreover dual class stocks so called golden shares and poison-pills like Japanese stock warrants are not implemented in this draft because they have possibilities to be abused mainly for defending corporate control than raising capital.<BR> It is doubtful whether it is promising that the defensive stocks such as golden shares and poison-pills are newly introduced in corporate law for the publicly held companies. In most of countries the stocks are prohibited to be issued in the listed companies and recently in ED countries the golden shares tend to be decided illegal against EU treaty in ECJ. Nevertheless it is necessary for the privately held companies to use a variety of stocks for defending the control, but in which the fiduciary duties should be levied on majority shareholders and corporate directors and officers against the company and all of shareholders in proportionality to their expanded corporate control power by using the defensive stocks.<BR> In order for answering this issues the current corporate law should be divided into two kinds such as the law of privately held company and the law of publicly held company. It is desirable that the corporate needs for using the defensive stocks such as golden shares against control attack would be legally supported not in the law of publicly held company, but in the law of privately held company. But it is same in the listed company classified as the public corporation under the Securities Exchange Act. Finally it is required that golden shares and stock warrant should be introduced in the `national security` and `public interest` - related companies for defending their control against foreign M&A by revising the related special statutes.