株式買受選擇權에 관한 法的 硏究

Abstract

The stock option is an employee's right to buy stocks of his company which are provided as a part of compensation package. The optionee can exercise his right to buy stocks, either newly issued or currently on the market, at an predetermined price within a certain period. The stock option is a useful way of compensation, in that it may motivate the optionee to care about both his own achievement and the outcome of his company, and in that it may lead the board members who are given stock options to make decisions for the interest of the shareholders. However, the success of this recent compensation method depends upon whether to make a fair and efficient scheme and application. This research attempts to deal with some of the legal issues raised since the introduction of the stock option in 1997. First, the existing law entitles a company to give the stock option only to the employee of that company, but prohibits the stock option from being provided to the employee of its sister or affiliated company even though he can make a contribution to the former company. It is suggested that the company should be allowed to grant the stock option to the employee of its sister or affiliated company if his contribution to the outcome of the former company can be objectively proved. Second, it is suggested that the company should establish a compensation committee under the board where outside directors design and execute the stock option scheme in a more fair and skillful way, and that the decision of the committee should be regarded as the decision of the board. Third, to help the company make a quick decision on the stock option, it is suggested that the company should have a standing rule which allows the compensation committee to decide on whether, or how much, to give the stock option to individual members of the company under the condition that the overall plan of the stock option has been approved in the shareholders' meeting, and that the decision of the compensation committee should be approved later in the shareholders ' meeting. Fourth, to help the shareholder and the creditor understand the contents of the stock option plan, it is desirable to make a public announcement on the stock option graphic table. And, to ensure the transparency and the appropriateness of the stock option plan. it is desirable to announce the graphic data of cumulative total shareholder return, and the evaluation method for the value of the stock option together with the data of competing companies or the whole industry as a comparison measure It is suggested that the company should announce the stock option plan in two ways to minimize the sense of incongruity among the members - the one for the CEO and high ranking directors who are given a considerable amount of stock option, the other for the rest of the members. The company should announce the details of the stock option plan for the CEO and high ranking directors, but, as regards the rest of the members, announce the whole data of the stock option as .a group, not as an individual. Fifth, as to the minimum period requirement for the optionee to exercise the stock option, there are differences among the three statutes governing the stock option, which may cause the issue of inequality. It is suggested that the minimum period should be two years from the approval in the shareholders' meeting on the condition that the optionee should work for the company at the time of exercise. If a longer period is needed, there is no reason why the contract between the company and the optionee should not be respected. Sixth, according to existing law, there is the minimum price requirement for evaluating the current price and the exercise price, and the same is true of the adjustment of the exercise price. Therefore, in reality, it is difficult to adjust the exercise price below the current price. Of course, such an adjustment may be contrary to the shareholders' interest, while the optionee may collect unearned income. Nevertheless, since the stock option is introduced as a part of compensation package and the value of the stock is necessarily subject to change, the law should allow the company to adjust the exercise price in the above way, if there is no possibility of intentional maneuvering. Seventh, the h w governing the preferential taxation of the stock option stipulates about the limit of exercise price of one person and the scope of the corporation tax which can be recognized as the pecuniary loss. In the case of the first issue, the criteria for the evaluation is the annual sum of the purchasing price of the stock. So, it is illegal not to select the profit from the exercise of the stock option as the criteria even though it is the actual profit. In the case of the second issue, it is out of equality to set the scope of assessment because the exercise of the stock option does not yield profit for the company. Therefore, it is advisable to set the scope of assessment based on the profit from the exercise of one person and to unleash the limit of exercise price in setting the scope of the corporation tax which can be recognized as the pecuniary loss. Stock option is a useful way of compensation which harmonize the interest of the employees, the shareholders and the company, but there will be priority among them depending on the situations the company faces. Though the stock option is a part of compensation package, it is suggested that it should not infringe on the interest of the shareholders.