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Expansion of directors’ duty of loyalty: Concerns over excessive use of corporate profits
2024.11.1609.01
Modified: 2024.11.1609.01
Original text of article
(Source-NEWSIS)
[Seoul-Newsis] Reporter Lee Hyeon-joo = “The controversial revision of the commercial law is
It causes overuse of Theravada and can be attacked by foreign speculative capital.
However, it is exploited to significantly damage the competitiveness of domestic companies.
“It will act as a ‘law to encourage overseas speculative capital’” (Domestic
Joint statement of eight economic organizations)
The Democratic Party of Korea’s recent award to strengthen the regulatory framework for corporate governance
The commercial law amendment was adopted as a party line and centered on the political circles.
There is a movement toward processing the amendment:
When the commercial law is revised
In other words, the director’s duty of loyalty includes the provision for the good of the company.
The defense is that if additional shareholders are added, the company will be subject to all kinds of lawsuits.
The logic is not wrong. It is stated in the law, so it is against the interests of shareholders.
It is true that when you make a decision, there is a risk of litigation.
But why can’t we just do it by law?
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Uo casenote kr/ Supreme Court/20(
On the grounds that it cannot be considered that any damage occurred to the
Although there were inappropriate points in the reason why the sentence was sentenced,
I think that conclusion is justified.
The special prosecutor’s argument for this part of the appeal is without merit.
all. The issuance of convertible bonds for the purpose of transferring control is
Check whether it constitutes a violation of duty.
A director takes control of a corporation against the will of existing shareholders.
Transferring to a third party is an act that infringes on the interests of existing shareholders.
Infringing on the interests of the stock company, which is the object of control
It cannot be viewed as a corporation. The directors of a stock company are
It can be said that he is in the position of a person who handles the affairs of stocks, but
their affairs directly in relation to shareholders who are separate from the company
Not only is it wrong to build it on the owner’s own efforts (Supreme Court 2)
004 6 17 Sentence 2003 Do 7645 (see en banc decision),
The transfer of rights is ancillary to securing controlling stock.
Because it is only an effect (Supreme Court 2004. 2 13 decision 2001
(see D36580 ruling), changes in the company’s shareholding ratio may affect existing shareholders
If it is due to one’s own choice, control is transferred to the director and
It cannot be said that there is a breach of duty in relation to:
Therefore, a convertible company for the purpose of transferring control of a stock company
The issuance of bonds, etc. is itself an abuse of the issuance authority and is
The special prosecutor’s argument for this part of the appeal is that it constitutes a violation of duty.
Again, there is no reason:
This is the Supreme Court precedent in the Samsung Everland convertible bond issuance case at a low price.
2008do9436
Although the case infringes on the interests of shareholders, the interests of the company are
does not infringe
A director is a person who handles the affairs of the company.
Not a person who handles the affairs of shareholders
It clearly set a precedent that divided the company and its shareholders.
The purpose of that precedent is to exonerate Samsung.
Shareholders are not specified in the director’s duty of loyalty.
What was not available was exploited to the extreme.
In addition, if you interpret the management rights gain as an additional level,
At that time, the Supreme Court was…
Supreme Court precedent means that similar cases are brought to the Supreme Court again.
Unless the Supreme Court itself overturns past precedents,
It continues to have a significant impact on all trials in the country.
In other words, thanks to that precedent, there is a mechanism to protect shareholders’ interests.
As of now, there is none.
Should we wait until the Supreme Court overturns it itself?
Or should we quickly resolve it through legislation?
Opponents say that somewhere overseas, shareholders are explicitly included in the law.
They protest that there is no country.
If you just look at that statement, it’s a fact, but those countries need to do that.
Because there is none.
The owners of a company are shareholders
Minority shareholders for the benefit of major shareholders
Precedents and authoritative interpretations that profits should not be sacrificed
Since it has already been prepared, in fact, to some extent, the shareholders’ benefit is
is protected
The directors’ shareholders have no space but space suits.
It is thrown in with its bare body.