실무적 시각에서 본 정관상 초다수결의제(超多數決儀制)의 효력과 적법성에 관한 고찰 ― 미국, 유럽, 일본 등과의 비교법적 검토 및 判例를 중심으로 ―

Under the Commercial Act, the term “Super-majority Voting Rule” is a resolution requirement at a general shareholders' meeting and refers to a decision-making method that adds to universal majority requirements, such as ordinary resolutions or special resolutions. As one of the means of defending the management rights of a corporation, a super-multi-determination system is mainly used in the dismissal and appointment of directors, the replacement of the board of directors, and the change of articles of association. Looking at foreign cases such as the U.S., there are many cases where there are prestigious regulations or allow ultra-majority resolutions based on the law of precedents. It seems that there are not many cases where special debates are raised about the legality or validity of the ultra-multi-resolution system. On the other hand, our practice is quite different from this. The current commercial law does not have a stipulation related to the super-multi-determination system. Some people regard ultra-majority resolutions as contracts between shareholders, citing the absence of actual regulations, and there are critical views to the effect that it is questionable whether the government can recognize full-fledged autonomy within our current legal system. There are some different views in academia and practice, but as a researcher, the ultra-multi-determination system is valid under the current commercial law. Above all, the reality of corporate practice is that many listed companies in Korea are operating by introducing a super-majority resolution system under the articles of association. Some point out the effectiveness and legality of the ultra-multi-determination system, and large and small disputes continue to arise in the practice of company law against companies that adopt it. However, it is inefficient and in many ways undesirable that disputes over the validity and legality of the super-multi-determination system continue to escalate into legal disputes. As of 2020, the number of listed companies adopting the super-multi-determination system in Korea has gradually increased, and the number of companies currently introducing the system among listed companies in Korea seems to have exceeded 250. The Supreme Court has yet to confirm the effectiveness and legality of the ultra-multi-determination agenda. However, there is no doubt that the validity of the ultra-multi-determination system is supported by theories and is also permitted by the articles of association and self-governing body. The Supreme Court's ruling cases, which recognized the validity of the articles of incorporation of the super-multi-determination system, were also confirmed by the Supreme Court's ruling to reject non-compliance. The ultra-multi-determination system is recognized almost without exception in major developed countries, and thus, by comparative law, its legitimacy and specific validity as a system are also recognized. In particular, in Korea, where unlike other countries, there is no proper defense against hostile M&A, there is a greater need to acknowledge its effectiveness.