주주와 이사회 사이의 권한배분 - 주주의 표결에 대한 이사회 간섭을 중심으로 -

A dilemma in corporate enterprise is to restrain managers from abusing their power while granting them sufficient managerial power. A strategy commonly deployed to control managementʼs abuse of power in most jurisdictions is to allocate powers between shareholders and managers (including directors) and to have the two groups hold each other in check. Although powers granted to shareholders differ depending on the jurisdiction, they may be classified into three categories: (i)voting, (ii)filing a lawsuit, and (iii)selling shares. Management interference in the exercise of shareholder power can take place in respect of all three types of power. This paper will focus on the interference in (i). This issue has so far attracted little attention in Korean legal academia. It would not matter if the issue were irrelevant in Korea. The issue, however, by no means remains just academic as real life cases involving the issue are already observed in Korea as well. Perhaps the most conspicuous example of such a case is the dispute between Samsung Group and Elliott, a New York-based hedge fund, over a merger between Samsung C&T and Cheil Wool, both of them Samsung affiliates. The merger was opposed by foreign investors including Elliott who are not dissatisfied with the terms. In an effort to boost friendly shareholdings at the general meeting, C&T sold its treasury shares (6%) to KCC, a friendly shareholder. Elliott filed a lawsuit to prevent KCC from voting of its newly acquired shares. The Seoul High Court acknowledged upfront that the primary purpose of the sale was to facilitate the passage of the merger resolution at the general meeting, not to raise funds for the firm. In other words, management carried out a financing action to influence the outcome of shareholder voting. The court, however, refused to hold the sale void in itself for the following reason: ʻʻalthough its purpose may be viewed as in contrast to the interest of those shareholders who oppose the merger, we cannot conclude that it in itself hurts the interest of the firm or the shareholders in general. Only when the merger involved itself hurts the interest of the firm or the shareholders in general, we can conclude that the sale involved hurts the interest of the firm or the shareholders in general, as its purpose lacks in reasonableness.ʼʼ Despite its significance, this reasoning has not been subject to adequate academic scrutiny. The purpose of this paper is to examine some of the general issues involved in the board intervention in the exercise of shareholder power, shareholder voting in particular. As the issue is most actively discussed in the United States, this paper will first survey the state of academic discourse in the United States and then attempt to examine the issue from a theoretical perspective.