超多數決議制의 有效性과 그 法的 限界 - 주주총회 특별결의요건을 중심으로 -

Supermajority vote is referred to as a majority voting rule requiring greater quorum and/or voting requirement than a simple one, which is needed for certain extraordinary actions such as approving a fundamental corporate change at a meeting of stockholders. Under the Korean Commercial Law, there is no provision explicitly permitting the supermajority voting requirement at a special shareholders meeting. But most of Korean scholars agree that even a unanimity as well as supermajority voting requirement is legally permitted in Korean Commercial Law. There is no doubt that any kind of supermajority voting requirement is valid under the foreign company laws because they explicitly provide like “The articles of incorporation may provide for a greater quorum or voting requirement for shareholders than is provided for by this Act”. In the absence of such a provision in the statute, any supermajority rule adopted by a change of corporate articles is construed invalid by the U.S. courts. Under the Korean Corporate legal structure, it is also critically doubtful whether the supermajority voting rule is absolutely valid as in U.S. legal system. In this paper I summarize the history, provisions of Revised Model Business Corporation Act including some leading statutes’ provisions, court’s decisions concerning about its validity and empirical evidence in effects concerning the U.S. supermajority rule. This paper stresses that the supermajority rule should be explicitly provided in Korean Commercial Law in order for the rule to be construed valid. In particular, this paper analyses that even though the rule is newly and explicitly provided in the commercial law, there would be a certain limitation of the rule’s validity only in public corporation. Such an analysis is based on professor Gilson’s corporate structural approaches, in which he argues that the supermajority rule including other shark repellent charter amendments should not be permitted in the public corporation. This paper concludes that even though the supermajority rule is explicitly permitted in the statute, the greater quorum and/or voting requirement should be designed to make the range of the minimum quorum to be present at the shareholders meeting placed within one-thirds to two-thirds of the total outstanding votes. It’s because conflicting interests between majority and minority shareholders could be fairly balanced, which must be deemed as a public policy inherently required in the shareholder decision rules under the regulatory philosophy of the Korean corporate law.