주주의 개념과 회사법적 지위에 대한 고찰

As the capital market has developed, shareholders have become similar to investors. It means that shareholders are focusing on investment profits arising from the increase of the stock price while they are disinterested in exercising voting rights at the shareholders' meetings. Due to such change, allocation of powers between the board of directors and shareholders’ meeting under the Korean company law does not work properly. The allocation of powers is important for the corporate governance. Shareholders are expected to function as a controlling body against the management through exercising voting rights at the shareholders' meeting. Shareholders could be categorized in variety according to category criteria. This variety in categorizing shareholders could cause confusion in reviewing the status and function of the shareholders generally. For instance, what dose it mean by the shareholders when proposing that the power of shareholders be strengthened? Does it include controlling shareholders? Further, what is the criteria in determining controlling shareholders? To what extent are the controlling shareholders required to exert the influence over the management to meet the criteria? With this in mind, it is critical to establish the consistent definition of shareholders applicable to the Korean company law. There are several situations regarded as leading to weaken the shareholders’ management controlling power. First. delegation of the power to exercise of voting rights has weakened the shareholders’ power. Such delegation has separated the shareholders’ rights from the shareholders and weakened the shareholders’ power to control management. In addition, the increase of investor-like-shareholders including institutional investors and the emergence of empty voting rights have weakened the management control power of the shareholders. Controlling shareholders who pursue private interest while exploiting the corporation’s interest in excess to their proportionate shareholding ratio are subject to regulation of the Korean company law. Among others, restriction on exercise of the voting rights is used to regulate controlling shareholders under the company law. In order to make the status of the shareholders as having the management controlling power effective, it would be necessary to encourage shareholders including institutional shareholders and hedge funds to participate at the shareholders' meeting and to exercise their voting rights. Also it should be considered to charge duties and liabilities on shareholders who have management controlling power and pursue their private interest accordingly. Particularly, controlling shareholders should be subject to duties and liabilities under the Korean company law.