집중투표제도 의무화 -상법개정시안중 집중투표제도의 의무화에 대한 반론-
A Critical Review on the Adoption of Mandatory Cumulative Voting
박수영(전북대학교)
27권 3호, 115~139쪽
초록
Cumulative voting for corporation directors is a system intended to allow minority shareholders to elect some of the directors of their corporation. Representation on the board of directors is important because the board of directors manages the corporation and establishes its policies. The other method of voting for directors is sometimes called “straight” voting. With straight voting, majority shareholders can usually elect all of the directors of their corporation, while the minority shareholders can elect none. In contrast, cumulative voting for directors is intended to allow minority shareholders to elect a number of directors which is in rough proportion to their voting strength. The original idea for cumulative voting came from political theories, where the ideal was that majority and minority electors should all be represented in proportion to their numbers. The first expression of those political ideas in corporation law was the 1870 Illinois Constitution. Although nearly half of all states once mandated cumulative voting in corporate elections, only five states do so now in USA. Most nations have cumulative voting provisions which are “permissive” and not “mandatory,” meaning that the decision to use cumulative voting is made at the corporation level. Majority shareholders usually control this decision and thereby control the use of cumulative voting. After the Korean Economic Crisis in late 1997, the Korean government has introduced a “permissive” cumulative voting in the Korean Commercial Code. The 2013 Amendment to the Korean Commercial Code attempts to adopt “mandatory” cumulative voting. Critics say that “mandatory” cumulative voting can lead to divided boards. Directors should owe their allegiance not to “special-interest” shareholders, but to all shareholders. Corporations generally do not favor cumulative voting because it may provide dissidents with greater leverage. Realistically, the Korean Commercial Code should allow corporations to choose to “opt out” to such a provision.
Abstract
Cumulative voting for corporation directors is a system intended to allow minority shareholders to elect some of the directors of their corporation. Representation on the board of directors is important because the board of directors manages the corporation and establishes its policies. The other method of voting for directors is sometimes called “straight” voting. With straight voting, majority shareholders can usually elect all of the directors of their corporation, while the minority shareholders can elect none. In contrast, cumulative voting for directors is intended to allow minority shareholders to elect a number of directors which is in rough proportion to their voting strength. The original idea for cumulative voting came from political theories, where the ideal was that majority and minority electors should all be represented in proportion to their numbers. The first expression of those political ideas in corporation law was the 1870 Illinois Constitution. Although nearly half of all states once mandated cumulative voting in corporate elections, only five states do so now in USA. Most nations have cumulative voting provisions which are “permissive” and not “mandatory,” meaning that the decision to use cumulative voting is made at the corporation level. Majority shareholders usually control this decision and thereby control the use of cumulative voting. After the Korean Economic Crisis in late 1997, the Korean government has introduced a “permissive” cumulative voting in the Korean Commercial Code. The 2013 Amendment to the Korean Commercial Code attempts to adopt “mandatory” cumulative voting. Critics say that “mandatory” cumulative voting can lead to divided boards. Directors should owe their allegiance not to “special-interest” shareholders, but to all shareholders. Corporations generally do not favor cumulative voting because it may provide dissidents with greater leverage. Realistically, the Korean Commercial Code should allow corporations to choose to “opt out” to such a provision.
- 발행기관:
- 한국기업법학회
- 분류:
- 법학