신주발행무효의 소
1. The plaintiffs' appeal is dismissed.
2. The costs of appeal, including the costs of supplementary participation, are assessed against the Plaintiffs.
With respect to the instant case cited in the judgment of the court of first instance, the reasons for this court are as follows, in addition to adding the following judgments as to the assertion that the plaintiffs supplement and add in the court of first instance, and therefore, it is identical to the entry in the reasoning of the judgment of the court of first instance.
The summary of the plaintiffs' assertion that the conversion price is set at KRW 4,500 in the underwriting contract of the instant convertible bonds, and the adjustment clause provides that if the average net profit per year 2013 is less than KRW 3 billion, the conversion price shall be adjusted to KRW 1,500 in the event of occurrence.
Such conversion condition is specified only after December 31, 2013 when net income for the year 2013 is finalized, and it does not exist at the time of issuance of convertible bonds.
Therefore, the period for filing a lawsuit to invalidate the issuance of the instant convertible bonds should be calculated from the date when the Defendant’s Intervenor’s conversion right is exercised.
In addition, the conversion price of the convertible bonds of this case was registered in KRW 4,500, but the conversion price of KRW 1,500 claimed by the Defendant’s Intervenor was based on the adjustment clause stated in the underwriting agreement, and thus, is null and void as it is based on the adjustment clause stated in the underwriting agreement.
Judgment
C. The issuance of convertible bonds is subject to a right to convert into a stolen stock by exercising the convertible right. Since such issuance has a significant impact on the physical foundation of a stock company and the interests of the existing shareholders, Article 429 of the Commercial Act concerning a lawsuit seeking nullification of issuance of new stocks is applied mutatis mutandis to the issuance of convertible bonds (see, e.g., Supreme Court Decision 2000Da37326, Jun. 25, 2004). Meanwhile, Article 429 of the Commercial Act provides that the invalidity of issuance of new stocks may be asserted only by a lawsuit within six months from the date of the issuance of new stocks only by shareholders, directors or auditors. This is intended to determine a complicated legal relationship associated with the issuance of new stocks at an early stage.