주주총회 결의에 관한 특별이해관계의 규율체계 再論―비교법적 고찰에 기초한 입법론―

This paper deals with one of the most important and hotly-debated issues regarding Article 368(3) of the Korean Commercial Code(hereinafter “KCC”). The KCC prohibits a shareholder with special interests in a resolution from voting at the general Meeting of shareholders(Article 368(3)). If the resolution passed without the shareholder’s participation turns out to be grossly unfair to the interested shareholder, and she could have blocked it had she been allowed to vote, the interested shareholder may file a lawsuit for revoking change of the resolution(Article 381). The provision has been criticized for unclear concept of special interest and the draconian effect of prohibition of voting right by Korean scholars. Furthermore, this mechanism does not function that well to avoid conflict of interests for a few reason. As mentioned, first, the meaning of special interests is unclear and vague. Second, according to the prevailing view among Korean academics, the concept of special interests is interpreted so narrowly. Thus, Article 368(3) is not applied to the non-party who may influence over a shareholder. The purpose of this paper is to examine the issues regarding “special interest” in comparison with German and Japanese law.