종류주주총회의 쟁점에 관한 소고

Under Article 435 (1) and Article 436 of the Korean Commercial Code (“KCC”), a resolution of the general meeting of holders of class shares (“GMCS”) is required in addition to the resolution of the general meeting of shareholders (“GMS”) so as to protect the interests of the holders of class shares, in cases of i) determining amendments to the articles of incorporation, ii) the specifics for holders of class shares regarding the acquisition of new shares, and allocation of shares following the consolidation/split/amortization of shares or the merger/split of the company, and in cases where iii) the split or split-merger, share exchange, share transfers and merger of the company causes losses to a certain class of shareholders. In practice, it is important which decision-makings of a company require a GMCS and how such GMCS are performed. However, in most cases, theoretical discourse and clear standards lack concerning the attending shareholders and the agenda and the convening, actual proceedings and resolutions of the GMCS as well as how to handle defects thereon. This paper reviews such issues, providing a reasonable interpretation that adequately adjusts the conflict of interests among shareholders and practical alternatives that reduce legal uncertainties. While the necessity of a GMCS for holders of common shares is debatable, it is difficult to deem that the interest of holders of common shares will be wholly protected solely by a resolution of a regular GMS in which holders of class shares also participate, if losses may possibly incur with holders of common share as a result of discriminatory treatment against holders of other class shares. Accordingly, it would be fair to protect the interests of holders of common shares by requiring a resolution of a general shareholders meeting consisted of holders of common shares alone. In proceeding with a GMCS, it is often questioned whether a GMCS can be convened by using the record date or the period of closing the shareholders’ registry that was already publicly notified for a regular GMS. However, a reasonable interpretation would not find this permissible because using the record date or the period of closing the shareholders’ registry without separately issuing a two-week prior notice for the GMCS may incur unexpected losses to holders of class shares, since the shareholders would not be able to anticipate the GMCS nor be given the opportunity to register title transfers in the shareholders’ registry in preparation of such meeting. The most frequently raised issue in practice concerns which acts of a company are required to be adopted as an agenda at a GMCS, and yet clear standards are often not established therefor. Accordingly, this paper reviews whether the KCC may require a GMCS for each specific type of act of a company. In light of the Supreme Court decision that all circumstances must be comprehensively taken into account when judging the possibility of losses being incurred with holders of class shares, it is necessary to comprehensively consider i) whether the compensation for the holders of class shares are appropriate if a holder of class shares receives redemption proceeds, etc., and ii) whether the status for dividend payouts or the ratio of voting rights of class shares and common shares maintained equally following such act of a company. In order to cut down the risks arising from the uncertainty surrounding the necessity of GMCS, the terms of class shares at issuance or the articles of incorporation thereof should provide the manner in which class shares should be treated for certain acts of the company, because it would be difficult to deem that the holders of class shares suffered losses making a GMCS necessary if certain acts are carried out treating holders of class shares in a manner predetermined in the articles of incorporation or the terms of class shares. In cases where the resolution of a GMCS does not exist or has a shortfall or defect, it is desirable to resolve the legal relations thereof by receiving a court decision on the defectiveness of the GMCS itself, but this would not be a cause to deem the GMS resolution on the said agenda defective as well since the GMCS resolution, apart from the GMS resolution, is an additional requirement for the agenda to take effect so that the interest of holders of class shares are protected.