의결권 신탁과 의결권행사 계약의 비교법적 고찰

Voting trust and voting agreement are used to pool the voting rights and to exercise concerted voting rights as agreed among the shareholders. In the U.S. almost all the states adopted voting trust and voting agreement in the corporation statutes. Current U.S. law on the voting trust and voting agreement is based on the corporation statutes as well as case law. The main characteristics of the both voting arrangements are that such arrangements are disclosed to the company either by recording them in shareholders' record and certificate of shares or by submitting the agreements between the shareholders to the company and the parties can enforce the agreement by the specific performance order of the courts. Many commentators of Korea said that the U.S. voting trust and voting agreement could be also used in Korea. Regarding the voting trust, they explain that it can be used under the trust law as long as the legal effects are confined to the parties and the companies are not obligated under the trust arrangement. However, the opposing opinion says that since there is no provisions regarding voting trust and it is not clear whether the voting rights can be trusted under the trust law, voting trust can not be used in Korea. Regarding the voting agreement, most commentators explain that it can be used in Korea if it does not violate the public policy and law and that the legal effects only obligates between the parties of the agreements and the remedy for the breach of the contract is damages. The main difference of understanding on voting trust and voting agreement between U.S. and Korea is whether they can be enforced to the company. The shareholders of the agreements can enforce the contracts as they agreed and their remedies are not limited to the damages. Damages are not proper solution when voting agreements are violated. Since without clear provisions as in the U.S. it is impossible to achieve the purpose of voting trust and voting agreement as they intend, I recommend that voting trust and voting agreement need to be adopted in Korean corporation code in the future by amendment of corporation code.