소수주주 다수결의 도입 가능성에 관한 試論

Article 368(3) of the Korean Commercial Code prohibits exercise of voting right when the shareholder has special interest in the agenda item of the shareholders’ meeting. This apparently draconian provision does not function well in the context of related party transactions where the interest of the controlling shareholder is conflicting with that of the other shareholders. If we narrowly interpret the concept of “special interest” as the prevailing view does, the interested party’s voting right is not restricted at all. However, overly broad interpretation of the concept cannot be an appropriate alternative either, because it will grant too much power on the non-controlling shareholders which will result in creating gap between the economic rights and the control. This dilemma stems from the strict linking between the unclear concept of “special interest” and the grave effect of depriving of voting rights. As an alternative, this paper suggests a voluntary adoption of majority of minority voting in case where “special interest” in its strict meaning as understood by the current prevailing view may not exist but there is concern for conflict of interest on the part of the controlling shareholder. If the company voluntarily obtains consent from the minority shareholders for such a dubious transaction, then the transaction should enjoy some protection such as transfer of the burden of proof to the plaintiff with respect to the illegality or unfairness of the transaction. As an example to reflect this idea to the statute, this paper suggested an amendment to the Article 23-2 of the Monopoly Regulation and Fair Trade Act of Korea by providing a safe harbor when the company voluntarily obtains majority-of-minority consent. Even without such legislation, voluntary majority-of-minority consent may be considered as an important factor favorable to the company when the legality or fairness of the transaction is challenged later.