株主平等의 原則에 대한 再考

In most states of America there is not a provision on the principle of the equal treatment of shareholders. The protect of the minority apeals to the fiduciary duty of directors or controlling shareholders. The breach of such fiduciary duties may amount to 'fraud on the minority' or 'unfair'. In the Germany the principle of the equal treatment of shareholders has been accepted as the natural and universal principles. But before the 1970's the equal treatment of shareholders was formal equality. The German federal court delivered judgment which depends on substantial equality in 1977. The Japanese Company Law has a provision on the principle of the equal treatment of shareholders which shareholders should be treated equally along to the number and content of his possessing shares. In the construction of this provision it is argued that the equal treatment of shareholders of this provision is substantial equality. The Korean Commerce Law has no provision on this principle, but it is fundamental principle in the company law. In Korea the equal treatment of shareholders is asserted always proportional equality. But this argument is not reasonable in the poison pill or between various class shares. So it is desirable that in such cases the principle should be understood to substantial equality which is to prohibit irrational discrimination or to be possible to discriminate if it is reasonable rational ground.