Ketamine 마취의 임상적 고찰

양만식,이신숙,최병조 한림대학교의료원 1983 人間科學 Vol.7 No.11

종류주식의 다양화가 기업지배에 미치는 영향

양만식 한국상사법학회 2011 商事法硏究 Vol.30 No.2

It is natural for shareholders to have rights to have dividend payments, to have a share in the remaining corporate assets upon litigation, and to vote in the shareholder meeting. However not every shareholder can demand the same degree of these rights. There are shareholders who have different needs and interests. For example there must be shareholders who are only interested in the recovery of dividends not voting rights or those interested in making specific decisions. In this case, if the company can appropriately respond to those needs, it can expand possibility to secure funds in a faster and more favorable way. Given the diverse needs, the new corporation law implies its agreement with issuing class shares containing different rights. Shareholders should be treated equally, but there are arguing points when it comes to the principle of the equal treatment of shareholders in deciding the contents of the class shares. The class shares that exclude or limit the voting rights are being discussed in terms of defense measures of hostile takeover bids and corporate governance. There is an argument that the shares indicating different rights in proportion to the ownership for the same sort of stock are against the principle of the equal treatment. It is critical to respect the principle of proportionality including one share-one vote rule, and complacency in applying the principle can cause diverse damages. The class shares for different voting rights can be a strong defend measure, and so, they imply a lot of risks such as damaging the interests of minority shareholders or abusing the executive director status and its power. To reduce the problems of the class shares for voting rights,active execution of shareholder rights is necessary, and yet, minority shareholders should exercise their voting rights, which need relatively small expense. The advantage in actively exercising these voting rights is to be able to realize hostile takeovers for low cost. If the interest in exercising voting rights through a public announcement rises, it is expected that hostile takeovers for low prices will increase and effective monitoring on management with low cost will be possible.

일본법에 있어서의 기업결합 규제정책과 최근 동향

양만식 한국공정경쟁연합회 2001 경쟁저널 Vol.- No.74

敵對的 M&A에 있어서의 理事의 役割 : 理事의 行動基準 Standards of Behavior

楊萬植 한국기업법학회 2003 企業法硏究 Vol.14 No.-

A merger and acquisition(M&A) trend has risen in Korea since the IMF economic crisis, and it is also facing the significant turning point recently. IT is a general understanding that M&A is likely to remain on the increase. There are not many problems in a favorable M&A. However, we need to consider possibilities to fix the problems of a hostile M&A since we think it is an immoral behavior against legal minds or current business environments. In other words, there are many difficult problems to solve in the hostile M U because there are many conflicts of interest among the current management, buyers, shareholders and employees. When we consider the protection of the shareholders' interests and the needs to fix the negligence of them in Korea, we need to add the protection of shareholders' interests into the management's role in the case of Take Over Bid. With that concept, it's appropriate that the management should consider all interests of the shareholders, current management, buyer and additional counterparts and the possibility of carrying out the term and so they can choose and carry out the countermeasures against the Take Over Bid but must care about the realization of the shareholders' long term interests. In other words, since the director's duties of care, which are asked for in the relationship between the company and the director, includes the right and duty to consider the shareholders' interests, it's right for the director to have the countermeasures against the hostile M&A but these countermeasures naturally include the desire to maintain his right of control against the corporation and so it is necessary to refrain from overusing these countermeasures. In this study, I focus on the management's role and the criteria of its action in the target company, with reference to the recent mass purchase of SK corporation stocks by one of the foreign funds. Through a review of real law cases in the USA , this paper aims to reconsider the issue in the perception of protecting the interests of the management and the shareholders.

현대 주식회사에서의 이사의 책임범위와 신뢰보호

양만식 한국기업법학회 2007 企業法硏究 Vol.21 No.3

It is impossible for some directors always supervise the chief director's job in detail. Different directors have different jobs in the current business practice and business administration has become highly specialized and developed. Therefore directors who have limits in terms of time, information and expertise need to trust in judgments, decisions, advice and reports by other directors, employees and experts. In the US, relative standards of the care level imposed on directors are stipulated in laws and directors have the rights to believe in other directors and employees under the common law. In addition, recently US provincial laws tend to have exclusive terms for director's rights to trust others. Under the current law in South Korea, the relations between a company and directors should follow the terms of mandate, and the directors are understood to exercise their powers with careful attention as good guardians. This fiduciary duty is a general and abstract term so it is not clear what the duty means. However, the specific standard of the duty is different depending on the scale of companies and purpose of jobs. For bank directors, thoughts and experience as bank directors, and for CEOs of trading companies, expertise and experience as a director for trading jobs can become standard of their duty. Therefore directors in large and small companies can be considered to have their own standards for their duty. Even within a company, there is big difference in their fiduciary duty between the director who have the rights to run the company and other directors. Therefore, the level of the duty varies between directors who work full time and those who don't, and directors who get paid and focus on the job and those who don't. And thus for some cases, the former directors can be in the breach of the duty but that doesn't apply to the latter. This idea might sound like a confusion between each director's job and his duty but that's because each director in different position within the company has different job responsibility. Particularly, regarding the responsibility of directors who work occasionally, retirement pay for the directors who hold an additional post, and supervision duty of directors, it is necessary to review director's responsibilities commensurate with their real job position.

증권시장의 자율규제에 관한 검토

양만식 단국대학교 법학연구소 2007 법학논총 Vol.31 No.1

일본 회사법에 있어서의 주식제도와 코포레이트 거버넌스 - 신주예약권제도의 활용을 중심으로 -

양만식 한국경영법률학회 2009 經營法律 Vol.19 No.2

In the view of legitimateness of M&A defence system, if the purpose beforehand or afterwards remains same, the legal evaluation would be considered same. However, the situation refers a big difference depending on beforehand or afterwards. In the defence system after struggle for control is occurred, the certain shareholder who became the majority shareholder might be disadvantageous. In the beforehand defence system, there would not be any certain shareholder who would be disadvantageous as referred the same meaning. In consideration of a person who will be a future shareholder as an investor, not a shareholder, he is not a subject to protect its direct interest under company law. In the point of view to protect the investor from a hostile takeover, if an opportunity to consider whether they continue to invest expecting a risk or stop to invest are given by notifying the defence system beforehand, it is certain that chances for damage will be decreased. In case of the beforehand defence system, there is a benefit having a sufficient time to concern the shareholder's determination throughout approval of general meeting of shareholder on introducing the defence system. Under this circumstance, build the beforehand defence system extends a scope that the legitimate defence system would be initiated. On the other hand, the beforehand defence system reveals a problem being abused because the hostile takeover which is the subject to be defence is not specified. The beforehand defence system is able to allow the hostile takeover for the company's benefit according to its structure. As a result, it effects to hesitate buying related to the company's benefit, and therefore, it could be used for an excessive wide range of the defence system. In case of the afterwards defence system, a judicial review could be taken on the legitimateness of defence regarding the certain hostile takeover. In comparison, a strong beforehand defence system such as issuing a call option in advance, there is a high possibility that the scope to proceed the judicial review such on a period of filing a lawsuit would be narrowed down although there was an unfair management at the time allowing the hostile takeover. Due to this, the company blocks the beneficial buying under its duty to defence the disadvantageous buying and raises a possibility used it as self protection for management.

일본 회사법상 이사의 의무와 책임추궁

양만식 한국상사법학회 2009 商事法硏究 Vol.28 No.1

As the relationship between a company and its directors should comply with the articles related to mandate under the Companies Act of Japan, the directors are liable to fulfill their duties with the care of a good manager. The law also stipulates for the directors’ duty of loyalty describing that the directors should follow the articles of incorporation and the share holders’ resolution as well as laws, and that faithfully carry out their duties for the interest of company. According to judicial precedents, the duty of loyalty is not a different duty from the duty of care as a good manager, which accompanies a typical mandate relationship. It is just an additional statement on the basis of the duty of care, not a higher level of liability. The directors’ duty of loyalty and the duty of care come from the status of the directors as a mandatory. As the Article 330 of the Companies Act stipulates the relationship between a company and its directors should comply with the articles related to mandate, the directors hold a position as a mandatory. The directors are entrusted by the company as a mandator because of its trust in their personalities and insights. As a result, the directors are liable to the duty of care as a faithful mandatory, which can be expected in the trusty relationship of mandate. For a stock company, directors carry out the company's affairs entrusted to them, exercise the authority over the assets of company. These assets should be kept for the shareholders and should be used for the maximum interest of the shareholders. In a case that the directors should compensate for damages to the company, the general principle is that the company sue the directors for damages and ask for their liabilities. Regarding this derivative suit, the Japanese Companies Act describes that when the company doesn't sue the directors it must notify the reasons. The Act also stipulates new regulations like limiting abusive suits.

폐쇄회사에서의 소수주주의 보호

양만식 한국경영법률학회 2019 經營法律 Vol.29 No.2

Decision-making in a corporation is generally based on a majority rule. Therefore, a minority shareholder investing in the corporation is bound by the will of the controlling shareholder, and unless the manager's judgment is illegal, he or she must obey it. If these facts make it clear that the investment can not continue, it is sufficient for the shareholder to transfer the shares he holds to recover his capital. However, the free transfer of such shares is applicable to listed companies. The situation is different for the shareholders of closed companies that have no market in which they can freely transfer their shares. In other words, the principle of majority rule is applied in a closed company, whereby a minority shareholder is bound by management judgment of a manager who belongs to a majority (or controlling shareholder) with a large number of shares. In this case, the way to recover the capital that you have dropped is blocked, and you are in a disadvantageous position economically. The concept of oppression of minority shareholders in a closed company needs to discuss in the field of commercial law in the sense of relieving a minority who is treated unfairly by the majority who is the controlling shareholder among the investors by applying for dissolution order, shareholder representative suit. This study we focus on some aspects of the theory of salvation in the developed countries which address protecting minority shareholders in a closed company which has a controlling shareholder who works as an employee or director and I will also point out some implications. 주식회사에서의 의사결정은 일반적으로 다수결의 원칙에 근거하여 이루어지기 때문에 그 회사에 투자하고 있는 소수주주는 지배주주의 의사에 구속되고, 경영자의 경영판단이 위법하지 않는 한 그것에 따를 수밖에 없다. 이러한 사실들로 인해 투자를 계속할 수 없다고 판단되면 주주는 자신이 투자한 자본을 회수하기 위해 보유하고 있는 주식을 양도하는 것으로 충분하다. 그러나 이러한 주식의 자유로운 양도는 상장회사에나 해당되는 것이다. 실질적으로 주식을 자유롭게 양도할 수 있는 시장이 형성되어 있지 않은 폐쇄회사의 주주에 대해서는 사정이 다르다. 즉 폐쇄회사에서도 다수결의 원칙은 적용되는 것이며, 그에 의해 소수주주는 다수의 주식을 가진 다수파(또는 지배주주)에 해당되는 경영자의 경영판단에 구속을 받게 된다. 이 경우 자신이 투하한 자본을 회수할 길이 막히고, 경제적으로 상당히 불리한 입장에 처하게 된다. 폐쇄회사에서의 소수주주에 대한 억압이라는 개념은 출자자 중에서 지배주주라고 할 수 있는 다수파에 의해 부당하게 취급당하는 소수파를 해산명령신청, 주주대표소송, 주식매수청구권 등에 의해 구제할 필요가 있다는 점에서 우리 상법에서 진지하게 논의할 필요가 있다. 이러한 점에 중점을 두고 본 연구에서는 종업원 또는 이사 등의 임원으로서 보수를 받고 있는 지배주주가 존재하는 폐쇄회사에서 소수주주를 보호하기 위해서 논의된 선진국에서의 구제이론에 관해 약간의 고찰과 더불어 우리 상법에의 시사점을 얻고자 한다.

서면투표와 전자투표에 관한 문제점과 해결방안

양만식 한국상사판례학회 2004 상사판례연구 Vol.16 No.-

Individuals' use of two-way networking devices has fostered development in communication technologies as well as changes in the methods of communication among people, between individuals and institutions, and between institutions. Currently, corporations can not be run without involving themselves in the development of IT. In order to adapt to rapid changes in the technology environment and to pursue a policy of reacting to a highly information-saturated society, developed countries are preparing new commercial law and other legislations to encourage the "electronicization"of corporate management. In the process of amending corporate law, the corporate mechanism is under discussion in terms of securing the effectiveness of corporate governance and in aiding its reaction to an information-proficient society. In particular, increases in the power of shareholders' meetings are being considered. The meaning of corporate governance lies in the shareholders' ability, by exercising their right to select and remove directors, to ensure that the board of directors is overseeing the executive officers' corporate management. Consequently, as opportunities for the selection and removal of directors, shareholders' meetings should be revitalized by requiring more informative explanations by the officers for their activities as well as by encouraging shareholders to actively exercise their voting rights. This article's exploration of the practical problems involved with electronicizing shareholders' meetings is an attempt to seek this "vitalization of shareholders' meetings" as well as realize "regularly open shareholders' meetings."