주주총회 정족수제도의 개선방향

This Article reviews improvement direction of the voting requirement system of shareholders’ meeting under the Korean Commercial Act (hereinafter “KCA”). The KCA § 368(1) provides that unless otherwise provided for by the KCA or the articles of incorporation, general resolutions “shall be adopted at a shareholders’ meeting by affirmative votes of a majority of the voting rights of shareholders present thereat and representing at least a quarter of the total issued and outstanding shares.” The KCA § 434 provides that a special resolutions “shall be adopted by the affirmative votes of at least two thirds of the voting rights of the shareholders present at a shareholders’ meeting and of at least one third of the total issued and outstanding shares.” Facing the high diversification of share possession and the indifference of shareholders as to a shareholders’ meeting in a listed company, the KCA amended the above two provisions in 1995 to facilitate the adoption of resolutions at a shareholders’ meeting by abolishing the quorum requirement and relaxing the voting requirement. However, the voting requirement of those provisions has been criticized for allegedly not corresponding the principle that “the meeting is assembled when a majority of the current members are present, and the issue is decided by a majority of those present,” which is necessary for acknowledging the “representative nature of a resolution” in a decision-making process of organizational law. Meanwhile, the shadow voting system, which applied only to listed companies, was abolished on January 1, 2015 by the amendment of the Korean Capital Markets Act of 2013. Since permitting the KSD (Korea Securities Depository) to exercise voting right on behalf of the shareholders, the shadow voting system not only has been exploited by a small number of managing officers or controlling shareholders for strengthening their positions, but also has been obstacles to vitalizing a shareholders’ meeting. Thus, securing the quorum and voting requirement necessary for a resolution of a shareholders’ meeting has been an important issue, and it is argued that the current quorum and voting requirement should be loosened. After reviewing the interpretation of relevant provisions of KCA about voting requirement, discussions regarding amendment of the current law and the foreign legislation, this Article concludes and makes the following suggestions: First, general resolutions should be adopted at a shareholders’ meeting by attendance of a majority of the voting rights of shareholders at a shareholders’ meeting and a majority (two thirds in a special resolution) of the voting rights of shareholders present thereat. Second, in computations with respect to resolutions by a shareholders’ meeting, the number of non-voting shares such as non-voting class shares, treasury shares, shares more than three percent of KCA §§ 409(2) & 542-12 and cross-owned shares should be excluded from the total number of issued and outstanding shares. Third, KCA § 368(3), which provides that “No person who has special interests in a resolution by a general meeting of shareholders shall exercise his/her voting rights,” should be eliminated.