상법상 주주총회 의사정족수의 개선방안

The Article 368 (1) of the Korean Commercial Code provides that, in addition to the general majority voting rule, the resolution of the shareholders’ meeting needs the approval of one-fourth of the total number of shares issued. Such rule substantially functions as a quorum. Due to this requirement, however, several listed companies are recently reported to fail in appointing auditors and audit committee members, where the controlling shareholder is subject to the so-called 3% voting right limit. This seems to cause social costs, and thus should be urgently revised. Few major jurisdictions strongly requires a quorum in shareholders’ meeting, and the penalty imposed on the listed companies for not satisfying the requirement is hard to be theoretically justified. Thus, the most desirable approach is to simply eliminate the quorum requirement. Such revision may fix the current problem, and furthermore get rid of misperception on the quorum of shareholders’ meeting. Protection of minority shareholders is achieved through timely providing for sufficient information to the shareholders and making it easy to exercise their voting rights, not by imposing penalty for not satisfying the quorum requirement. Another more modest solution can be taken into account, which is to change the role of “one-fourth of the total number of shares issued” to a form of quorum in its original meaning. In such case, it should be allowed to eliminate the quorum requirement by the Articles of Incorporation. The advantage of this approach is that a controlling shareholder can use his or her shares to meet the quorum requirement, in spite of the 3% voting right limit. To this extent, the recent problems in listed companies can be largely resolved.