상법과 자본시장법의 상장회사에 대한 특례규정의 구성과 법체계상 문제점에 관한 검토

초록

Listed companies are subject to the general provisions under the Commercial Law, the special provisions for listed companies under the Commercial Law and the special provisions for listed companies under the Capital Markets Law in terms of corporate governance and corporate finance in Korea. This complicated legal structure in regard to corporate law applicable to listed companies gives rise to confusion and uncertainies. First of all, with regard to the special provisions for listed companies under the Commercial Law, there is still controversy surrounding the interpretation of the correlation between the general provisions and the special provisions for listed companies despite the recent amendment to the Commercial Law. In addition, in many cases where both general provisions and special provisions are applicable, it is difficult to cross-check them and to figure out which provisions are given priority due to the legislative arrangement by which the special provisions are placed in an isolated chapter remotely from the main provisions. Furthermore, in terms of the constitution of the special provisions which should encompass the incentives for companies which consider IPO as well as the mechanisms strengthening the corporate governance for investors in a balanced way, the special provisions lack the IPO incentives. Next, when it comes to the special provisions for listed companies under the Capital Markets Law, the corporate finance issues which are incorporated into the Capital Markets Law are classified as corporate law issues by nature. The policy rationale, which justified separating the corporate finanace issues from the corporate governance issues and incorporating the corporate finance issues for listed companies into the Capital Markets Law and its preceding legislations such as the Securities and Exchange Act, would not gain support from the theoretical and legal perspectives any longer. In addition, the Commercial Law has been making amendments to outdated or flawed provisions in terms of corporate finance in recent years. Due to this change in the Commercial Law, the independent chapter for listed companies under the Capital Markets Law is comprised of too minor and peripheral items, which casts skepticism on the need for the special provisions in regard to corporate finance to remain as an independent chapter under the Capital Markets Law. Considering these, it is time for the government and the lawmakers to relocate the special provisions of both Commercial Law and Capital Markets Law to relevant parts of the general provisions according to the subject and the issues.

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