美國聯邦證券法上證券의 定義에 관한 硏究

임재연(Lim, Jai Yun) 한국증권법학회 2008 증권법연구 Vol.9 No.1

이사의 자기거래와 공정성 요건

임재연(Lim Jai Yun) 성균관대학교 법학연구소 2009 성균관법학 Vol.21 No.2

This article deals with the self-dealing transaction between the director and the corporation under American corporate law and Korea Commercial Act(KCA) focusing on the fairness requirement. The duty of loyalty requires a fiduciary to act in the best interests of the corporation. Conflict of interest usually involves some form of self-dealing where the fiduciary is on both sides of transaction and in a position to receive a benefit unavailable to other shareholders or a corporation. The key aspect of self-dealing transaction is that the director and the corporation are on opposite sides of the transaction. More precisely, the transaction is concerned when three conditions are met: (1) the director and the corporation are on opposite sides; (2) the director has helped influence the transaction's decision to enter the transaction; and (3) the director's personal financial interests are at least potentially in conflict with the financial interests of the corporation, to such a degree that there is reason to doubt whether the director is necessarily motivated to act in the corporation's best interests. Article 398 of KCA provides that a director may effectuate a transaction with the company for his own account or for account of a third person only if he has obtained the approval of the board of directors. Under American corporate law, fairness is really the key element. There is greater judicial scrutiny of both the fairness of the process and the substance of the transaction. In most states, the important method of defending a self-dealing transaction against attack is by showing that it is, under all the circumstances, fair to the corporation. In nearly all states, fairness alone will cause the transaction to be upheld, even if there has been no approval by disinterested directors and no ratification by shareholders. When fairness is what really counts, there is still some practical benefit to the approval, a benefit which stems from standards of proof and the burden of proof. The burden of proof shifts when there has been director or shareholder approval. without such approval, the burden of proof is clearly on the director to show why the transaction is fair. Once there has been disinterested-director approval or shareholder approval, the burden shifts to the person who is attacking the transaction, who must now come forward with evidence of the transaction's unfairness. The draft of the revised KCA adopted a fairness test providing that the transaction is effectuated when the director has obtained the approval of the board of directors and the transaction is fair to the corporation. The shift of burden of proof employed by the U.S. courts is likely to have a great influence on interpretation of the KCA's fairness requirement.

지배주식의 양도와 관련한 법적 쟁점 - 미국의 회사법과 증권법을 중심으로

임재연(Lim Jai Yun) 성균관대학교 법학연구소 2007 성균관법학 Vol.19 No.2

  Shares constituting a controlling interest in voting power usually can be sold at a premium because of the added benefits to the purchaser that flow from the ability to control the corporation.<BR>  Generally when controlling shareholders sell their shares, they are selling their personal property, which does not automatically implicate any breach of fiduciary duty. The general rule is that the controlling shareholders, in a normal situation, may sell for, and keep, the control premium.<BR>  However, some courts have found that in selling controlling shares, shareholder has a fiduciary obligation to protect the corporation and the other shareholders. For breach of fiduciary duty in connection with the sale of their controlling shares, they might be liable to the corporation for any resulting damages, or as is more frequently the case, for any profits realized by them.<BR>  Where the sale of controlling shares involves a breach of shareholder"s duty to the minority shareholders, they can recover their proportionate interest in any profits.<BR>  In those special situations where the general rule does not apply such as sale to looter, sale of office and diversion of corporate opportunity, the plaintiff who succeeds on the merits will receive ⅰ) return of the premium to the corporation, and ⅱ) payment of some portion of the premium directly to the non-controlling share.<BR>  The most important exception to the general rule is the looting exception. Controlling shareholders may not sell their shares to one who intends to loot the corporation by unlawful activities. Those who sell their controlling shares may be liable for their sale of control when it is foreseeable that the only reason of purchasing the shares at the premium is to loot the business.<BR>  A second major exception to the general rule allowing the controlling shareholders to sell for a premium, is sale of office theory. When a sale of control takes place, the directors usually resign and select the designated nominees of the purchaser to replace them as directors. These resignations raise an issue of whether an illegal sale of office has occurred.<BR>  The category of exception to the general rule allowing a control premium is diversion of corporate opportunity theory. The two main situations in which courts have found such a diversion are ⅰ) where the court decides that the control premium represents a business opportunity that the corporation could and should have pursued. and ⅱ) where a purchaser initially tries to purchase most or all of the corporation"s assets. and the controlling shareholders instead proposes him into purchasing the controlling shareholders" block at a premium.<BR>  The Korean legal system does not recognize any provision of the fiduciary duty of the controlling shareholders. which has been developed by the courts of U.S. The issues in this Article can be permitted only after the revision of Korean Commercial Code. Although adopting the fiduciary duty of the controlling shareholders into Korean legal system has positive and negative effects. the introduction thereof is highly recommended.

제한증권의 전매에 대한 연구

임재연(Lim Jai Yun) 성균관대학교 법학연구소 2008 성균관법학 Vol.20 No.1

  This article deals with the regulation on the resale of the restricted securities under U.S. federal securities laws focusing on SEC Rule 144. The purpose of Securities Act of 1933(hereinafter "SA") is to prevent the public offering and sale of securities unless adequate information about them has been made available. SA §5 contains SA"s basic prohibition against offers and sales without registration for any sale by any person of any security, unless it is specifically exempted from the registration provision by SA §3 or §4. SA §3 lists various categories of securities that are exempt from registration, and SA §4 describes a variety of transactions that qualify for an exemption for registration.<BR>  Persons who acquired securities from issuer will sometimes have to worry about being classed as underwriters if they sell their unregistered shares. The principal situation in which a non-controlling shareholder needs to worry about being an underwriter, and would like to be able to use Rule 144, is where the person has previously bought stock from the issuer in a private transaction and now wishes to resell that stock. Especially where the investors has not held the stock very long, there os a chance the court will hold that he bought with an intention to resell rather than to hold for investment; if so, the resale is likely to be deemed part of the original distribution, the invester will therefore be an underwriter, and the resale will be an illegal sale of an unregistered security. In fact, the conditions which must be met before Rule 144 applies are actually easier in the non-controlling shareholder case. Restricted securities are defined in Rule 144 as including those acquired directly or indirectly from an issuer in a non-public offering, as well as securities subject to the resale restrictions imposed by the exemptions provided by Regulation D. Compliance with Rule 144 requires dissemination of sufficient current public information concerning the issuer. There are only two ways to satisfy the rule"s information requirements. A company that is subject to the reporting requirements of the SEA satifies the rule, provided, of course, that all all reports are accurate and up to date. Foe companies that are not subject to SEA, the issuers must make similar information publicly available in order to qualify Rule 144. In additionn to public information requirement, the rule imposes a one-year holding period for resales of restricted securities.<BR>  Article 12 of the Korean "Regulation on Securities Issuance and Disclosure" lists the securities which shall be deemed transferable, in accordance with Article 2-4 Paragraph (4) of the Enforcement Decree, to at least 50 persons within one year from the issuance date. The various provisions under U.S. federal securities laws regarding the restricted securities are likely to have a great influence on interpretation, by the Korean regulatory authorities and the courts, of the resale of securities acquired from an issuer in a non-public offering.

사실상의 회사 이론에 관한 연구 - 미국의 판례와 제정법을 중심으로

임재연(Lim Jai Yun) 성균관대학교 법학연구소 2008 성균관법학 Vol.20 No.2

  This article deals with the "de facto corporation" and promoter"s liability focusing on the trend of court decisions and statutes in the U.S. A de jure corporation is recognized as having a corporate existence for all purposes, even as against a direct attack by the state. In the absence of substantial compliance with incorporation requirements, a court may nevertheless treat a defectively organized corporation as a "de facto corporation" and recognize it as having continuity of life, limited liability, and other corporate attributes. Except in a direct action by the state, a de facto corporation is treated as though it were de jure corporation. The recognition of de facto existence promotes the security of business transaction.<BR>  By simplifying the mechanics of incorporation, modern corporation statutes have reduced the number of defective incorporation and thereby the amount of litigation. Most modern corporation acts contain provisions either dictate the moment in the incorporation process that a corporation comes into existence by providing that the filing of the articles of incorporation or the issuance of a certificate of incorporation by the secretary of state is either presumptive evidence or conclusive evidence that all conditions precedent to incorporation have been met, or they specify the consequences of particular defects in the organization process. MBCA §2.04 provides: "All persons purporting to act as or on behalf of a corporation, knowing there was no incorporation under this Act, are jointly and severally liable for all liabilities created while so acting". In jurisdictions with this provision, the purely or largely passive investor may escape liability for the obligations of an entity whose proper birth has not come about.<BR>  Persons may presume to do business as a corporation without having gone far enough in their incorporation attempt to acquire a de facto standing. Nevertheless, under some circumstances and for some purposes, courts sometimes hold either the purported corporation or persons contracting with it estopped to deny its corporate status. The corporation then is often referred to as a "corporation by estoppel". The application of the so-called estoppel doctrine does not mean that the irregular corporation has acquired a corporate status generally and for all purposes. Where a defective corporation brings suit against the other party to a contract to enforce the contract, courts often say that the party who has contracted with the supposed corporation is estopped from denying its existence. A person contracting with an association that pretends to be a corporation may sue the associates as a corporation, however, the principle of estoppel will prevent the associates from setting up as a defense the falsity of their own representation of corporateness.<BR>  Article 190 of Korean Commercial Code(KCC) provides that "A judgment affirming the nullification or revocation of the incorporation shall be effective against any third party: Provided that it shall not affect the rights and duties which have arisen between any member of the corporation and any third party person before the judgment becomes final and conclusive." This provision applies mutatis mutandis to the stock company(Article 328 of KCC), which is recognized as a de facto corporation.

예측정보 규제에 관한 연구

임재연(Lim, Jai Yun) 성균관대학교 법학연구소 2009 성균관법학 Vol.21 No.1

This article deals with the regulation on the soft information, or the forward-looking information under the U.S. federal securities laws and the Capital Market and Financial Investment Business Act(hereinafter referred to as CMFIBA). Article 119 (3) of CMFIBA provides the scope of forecast information including forecast or prospects for the financial status of the issuer, its business performance in the future, etc, and Article 125 (2) of CMFIBA adopted four safe harbor provisions including the description of being a forecast information, the grounds for judgement related to the forecast or prospect, good faith on the basis of a reasonable ground, and meaningful cautionary statements. Under the U.S. federal securities laws, the term forward-looking information means a statement containing a projection of revenues, income (including income loss), earnings (including earnings loss) per share, capital expenditures, dividends, capital structure, or other financial items. The issuer shall not be liable with respect to any forward-looking information if and to the extent that the forward-looking information is identified as a forward-looking information, and is accompanied by meaningful cautionary statements identifying important factors that could cause actual results to differ materially from those in the forward-looking information; or immaterial; or the plaintiff fails to prove that the forward-looking information if made by a natural person, was made with actual knowledge by that person that the statement was false or misleading; or if made by a business entity, was made by or with the approval of an executive officer of that entity, and made or approved by such officer with actual knowledge by that officer that the statement was false or misleading. Although U.S. federal securities laws require that known trends or uncertainties be disclosed in certain SEC filings, forward looking information needs not be disclosed. That is, the issuers are encouraged, but not required, to supply forward-looking information. However, issuers must include a section entitled MD&A in registration statement and in certain SEC filings. The MD&A affirmatively requires a certain amount of forward-looking disclosure. The MD&A section is intended to give the investor an opportunity to look at the company through the eyes of management by providing short-term and long-term analysis of the business of the company. The various tests employed by the SEC and the U.S. courts for the safe harbor requirements are likely to have a great influence on interpretation of the safe harbor requirements under CMFIBA by the Korean regulatory authorities and the Korean courts. The introduction of the MD&A in the U.S. securities laws to the Korean CMFIBA is highly recommended to enhance voluntary disclosure for the protection of the investors.

미국회사법상 이사의 해임에 관한 연구

임재연(Lim, Jai Yun) 성균관대학교 비교법연구소 2008 성균관법학 Vol.20 No.3S

As a general rule, stockholders cannot act in relation to the ordinary business of a corporation. The body of stockholders have certain authority conferred by statute which must be exercised to enable the corporation to act in specific cases, such as consenting to the amendments to the articles of incorporation, merger, dissolution, sale of all or substantially all of a corporation's assets. Any action by shareholders relating to the details of the corporate business is necessarily in the form of an assent, request or recommendation. As a general rule, stockholders cannot act in relation to the ordinary business of a corporation. The body of stockholders have certain authority conferred by statute which must be exercised to enable the corporation to act in specific cases, such as consenting to the amendments to the articles of incorporation, merger, dissolution, sale of all or substantially all of a corporation's assets. Any action by shareholders relating to the details of the corporate business is necessarily in the form of an assent, request or recommendation. Notwithstanding that a shareholders' agreement requires maintenance in office of a particular director designated by a stockholder, director may be removed for cause since implicit in any agreement to maintain a particular director in office is director's duty to fulfill faithfully the requirements of his office. When shareholders attempt to remove a corporate director for cause, there must be service of specific charges, adequate notice, and full opportunity afforded to such director to meet the accusation. Whether cause exists for the removal of directors is subject to the judicial review. As a general rule, a director's organizing a competing company or accepting employment with a competing company, a director's allowing the payment of rebates contrary to the board's order and improper withdrawal of funds and payment have been held to constitute sufficient cause. In the absence of authorization by statute or charter or bylaws, the directors do not have the power to remove one of their members even for cause. If cumulative voting is authorized, a director may not be removed if the number of votes sufficient to elect him under cumulative voting is voted against his removal. In a corporation with a number of classes, with each class electing a specified number of directors, shareholders of a specific class should have exclusive power to remove the directors whom they elect. The court that removes a director may bar the director from reelection for a period prescribed by the court. The restriction of the removal of directors under cumulative voting or staggered terms and the prohibition of the reelection of directors removed by the court are highly recommended to be introduced to the Korean Commercial Code.

주주명부 열람권에 관한 연구

임재연(LIM Jai-Yun) 한국법학원 2008 저스티스 Vol.- No.105

본고는 미국회사법상 주주의 주주명부열람권에 관한 법적쟁점을, 특히 정당한 목적이라는 요건을 중심으로 다룬다. 주주명부는 다른 주주들과 연락을 하거나 위임장경쟁을 통하여 경영진에 도전하려는 주주에게는 매우 중요하다. 미국회사법상 주주는 경영진의 열람거부를 정당화할만한 부당한 목적이 없는 한 보통법상의 열람권을 가진다. 대부분의 주제정법도 주주의 제정법상의 열람권을 규정하는데, 이는 보통법상의 권리를 대체하기 위한 것이라기 보다는 보완하는 것이다. 정당한 목적은 주주로서의 이익과 합리적으로 관련되는 목적을 의미한다. 영업비밀을 입수하거나, 회사의 경쟁업자를 도우거나, 경영진을 괴롭히려는 것은 부당한 목적이다. 보통법의 일반원칙은 열람청구인에게 열람의 정당성을 증명할 책임을 부담시키지 않는다. 마찬가지로 대부분의 주제정법은 증명책임이 회사에게 있다고 규정한다. 만일 회사의 임원이 부당하게 주주의 열람권을 거부하는 경우, 주주는 회사 및 그 임원에게 열람을 허용하라는 명령을 법원에 청구할 수 있다. 상법 제396조 제2항에 의하면, 주주는 통상의 영업시간내에는 언제든지 주주명부를 열람, 등사할 수 있다. 국내에 주주명부열람권에 대한 판례와 이론은 아직 충분히 축적되지 않았지고, 상법은 주주명부열람권에 대하여 정당한 목적 요건을 명시적으로 규정하지 않는다. 그러나, 대법원은 주주명부를 포함한 장부와 기록에 대한 열람권은 정당한 목적을 요건으로 하고, 회사가 목적의 부당함을 증명할 책임이 있다는 견해를 확립하여 왔다. 미국회사법상의 주주명부열람권에 대한 제도 중에서, 합리적인 변호사비용을 포함한 소송비용을 회사가 지급하도록 명하는 것과, 열람청구를 한 주주의 열람자료의 이용과 배포에 대하여 합리적인 제한을 가하는 것은 상법의 적용에 있어서도 이를 도입하는 것이 바람직하다. This article deals with the shareholder's right to inspect the list of shareholders, focusing on proper purpose requirement under American corporate law. The list of shareholders is very important if a group of shareholders intend to communicate with other shareholders or challenge management in a proxy contest. A shareholder has a common law right to inspect corporate books and records unless there is an improper purpose that may justify management denial of a shareholder's claimed right of inspection. Most statutes also provide shareholder's right of inspection, which is generally viewed as supplementing rather than supplanting the common law right. A proper purpose means a purpose that is reasonably relevant to the shareholder's interest as a shareholder. A demand is improper if it is to obtain information as to business secrets, to aid a competitor or to harass the management. The general common law rule does not place the burden on petitioners to show the propriety of inspection. Similarly, most statutes place the burden on corporation. If the officers of a corporation wrongfully deny a shareholder the right to inspect its books and records, the shareholder can obtain a court order compelling the corporation and its officers to make the records available for inspection. Modern corporation statutes specifically set forth remedies for enforcing inspection rights. Any shareholder may demand, at any time during business hours, to inspect or copy the list of shareholders under Korean Commercial Code §396(2). There are not many cases and principles regarding shareholders' right to inspect the list of shareholders in Korea, and Korean Commercial Code does not expressly provide the proper purpose requirement for the inspection of the list of shareholders. However, the Korean Supreme Court has developed the view that a shareholder has a right to inspect corporate books and records including the list of shareholders when the purpose is proper, and that the burden of proving improper purpose is on the corporation. Among the various provisions and principles under American corporate law regarding the right to inspect the list of shareholders, the court's ordering the corporation to pay the shareholder’s litigation costs including reasonable counsel fees, and imposing reasonable restrictions on the use or distributing of the records by the demanding shareholders are highly recommended to be introduced in applying Korean Commercial Code.

현행 전환사채제도상 문제점과 보완점

윤민섭(Yun, Min Seop),임재연(Lim, Jai Yun) 성균관대학교 법학연구소 2010 성균관법학 Vol.22 No.2

The convertible bonds(hereinafter “CBs”) involve the privilege, at the option of the holder, of converting it into share. As one of the forms for rising capital of corporation, CBs help the corporation to reduce the cost for rising capital and serve the investors as the attractive commodities offering stability of bonds and speculation of stock at the same time. Recently, CBs is abused for a expediential donation and a unfair transfer of the right of management. Because commercial law and other rules regulating unlisted corporation does not need a fairness of conversion conditions in CBs issued by allocation of stockholders and a general practice delegate authority how to deal with the residual CBs for which the existing stockholders had not subscribed to a board of directors. For the prevention of abuse of CBs, this paper proposes solutions as follow; First proposal is that the purpose of the issuance of convertible bonds is limited to business purposes. It may be asked whether the requirement of business purposes is viable solutions, because of its abstraction. But, The purpose restriction is meaningful as a basis of regulating the unfair issuance of CBs. Second proposal is to impose fairness on conditions of unlisted corporation's CBs issued by allocation of stockholders. It seems that the imposition is overrestriction of stockholder's property. But it is not the case because they has the right of profit sharing. Finally, third proposal is to prohibit the general practice on the forfeited CBs, if the initial issuance of CBs have include a serious unfairness of conversion conditions as price, terms, rate and otherwise.

일본 금융상품거래법상의 유가증권 개념에 대한 연구

류혁선(Ryu, Hyeuk Sun),임재연(Lim, Jai Yun) 성균관대학교 법학연구소 2009 성균관법학 Vol.21 No.2

This article deals with the definition of security under the Financial Instruments and Exchange Law (hereinafter, FIEL) of Japan in order to compare it with that under the Capital Market and Financial Investment Services Act (hereinafter, CMFISA) of Korea. Especially, this article makes an analysis of the comparison focusing on the concept of 'investment contract' derived from the Howey test under U.S. federal securities laws. The latest legislations in Japanese financial markets involved abolishing four laws, including the Financial Futures Trading Law, and consolidating them into the Securities and Exchange Law (hereinafter, SEL). Furthermore, they involved amending 89 laws, and consolidating some of the amended provisions into SEL. As a result, SEL covers a wider scope of financial instruments than before. Accordingly, it is renamed "Financial Instruments and Exchange Law". In recent years, financial instruments that are not regulated by SEL and other investor-protection laws have started to appear on the back of the progress in financial technology, etc., and users have been victimized in some cases. FIEL has expanded the scope of regulated products as follows, in order to close the loopholes in the existing legal system for investor protection. The definition of 'security' as financial instruments regulated by FIEL has been expanded. For example, interests in trusts in general are regarded as security and holdings of so-called collective investment schemes (funds) are comprehensively regarded as security. CMFISA has also been implemented since Feb. 4th 2009 in Korea. CMFISA is to contribute to capital market and investor protection by integrating capital market laws, including the followings: the Securities and Exchange Act, the Futures Trading Act and the Act on Business of Operating Indirect Investment And Assets, etc., except the Banking Act and the Insurance Business Act from the conventional existing laws related to finance. CMFISA introduced the concept of ‘Financial Investment Instruments(security and derivatives)’ as a comprehensive system, contrary to the positive list system under the Securities and Exchange Act. Since the definition of security derived from the Securities and Exchange Act had adopted a positive list system, it had been unattainable to regulate properly the new products appearing together with development of the capital market. Consequently, for this reason, there had been destitute of investor protection. It appears desirable to pursue a comprehensive definition of security to ensure appropriate protection of the investor but, at the same time, it could cause confusion in the legal system for lack of definitude and stability in the definition of security. In addition, ‘Financial Investment Instruments’ becomes the core concept which decides the scope to apply CMFISA with the same matter of security under the Securities and Exchange Act. In particular, the definition of security under CMFISA includes investment contract security derived from the Howey test under U.S. federal securities laws. Therefore, the Korean regulatory authorities and the courts are likely to play an important role for determining whether an instrument constitutes a security, same as the United States. Thus, Part II of this article reviews the change of the scope of security in Japan and Part III examines the concept and characteristics of security under FIEL, Part IV analyzes the concept of security under CMFISA in comparison with the definition of security under U.S. federal securities laws as well as FIEL in Japan in order to achieve the purpose of this article, which is to establish criteria about ‘Financial Investment Instruments’ especially 'investment contract security' that will be generated by applying CMFISA.