실질적인 주주권 강화를 위한 법정책적 과제

International assessment of Korea’s corporate governance is in conflict. The World Bank, which evaluates corporate governance focused on objective indexes such as legal system, ranked South Korea’s small investor protection 13th among 190 countries. On the other hand, World Economic Forum where additionally reflects subjective indexes such as survey on interested parties in addition to objective indicators, ranked South Korea’s small investor protection 97th out of 137 countries. Analysts from ACGA, an institutional investor group in Asia and CLSA, based in Hong Kong, both ranked South Korea’s corporate governance as the lowest among all Asian countries. In a comprehensive analysis of the reasons for the different results, South Korea’s legal system in relation to corporate governance is assessed to be relatively good, but in reality, it seems that the legal system is not operating effectively. Therefore, proposing alternative by finding out the parts regarding stockholder’s right that are guaranteed in the actual law but do not function in reality, is a necessary assignment to strengthen the substantive stockholder’s right. In the name of policy and legal assignment to enhance substantive stockholder’s right, this dissertation examined 3 issues regarding stockholders’ right. Firstly, This dissertation pointed out the fact that the Commercial Law protects stockholder’s right restricting the assignment of new shares to the third party in order to guarantee proportional position of stockholders, but in reality, the disposition of treasury stocks has the same effect as a third party allocation of new shares without informing existing shareholders of the allocation of new shares to third parties. Also, as a solution to this problem, removing the mandatory disclosure exceptions from the Capital Markets Act and preparing a plan to secure fairness in disposition of treasury stock are proposed. Secondly, the Commercial Law allowed dividends from shareholders and prescribed the dividend to be made on the principle of equality of shareholders. However, in reality, Dividend related shareholder proposals are becoming ineffective, and dividend in the holding company is paid differently because of the brand royalty. In order to solve this problem, institutional countermeasures to encourage the dividend – related shareholder proposals and preparing ways to regulate the difference dividends of holding companies are suggested. Finally, with respect to shareholder voting rights, the Commercial Law prescribed various methods for exercising voting rights, but in reality it is difficult to attend physical meetings because of the concentration of shareholders general meetings. Also, only a few companies adopted written and electronic voting system. This restricts the exercise of shareholders’ voting rights. To solve this issue, this dissertation proposed some ways to disperse shareholders’ meeting concentration and suggested more alternatives to complement shareholders’ method of exercising shareholder voting rights.