주식회사에서의 교착상태 해소를 위한 방안과 보관인의 임명 ―미국 델라웨어 주 대법원의 Shawe v. Elting 판결에 대한 분석과 한국 법제 및 실무에의 시사점―

In Shawe case, the Delaware Supreme Court judged for the first time that, in a corporation generating large profits but in a deadlock, without the consent of the shareholders, the court could appoint a custodian who holds the power to sell the company under DGCL section 226, and that regarding “irreparable injury or its threat” in DGCL section 226 (a) (2), the corporation's reputation, credibility, relationship with its customers, employee morale, etc. were the factors to be recognized. It is said that it has become a new standard in judicial practice in the United States, and I think this interpretation has great implications for Korean Corporate Law and practice. In particular, Shawe court's decision reaffirmed the broad equitable power of the Delaware Chancery Court to seek remedies on a case-by-case basis. In Korea, in order to secure various remedies for resolving disputes that may arise between stakeholders within the close corporation, the remedies existing in the US corporate law and case law, such as the appointment of a custodian by the court or court-ordered partition of property, could be introduced to the Korean Corporate Law, too. The founders of the corporation need to carefully consider the possibility of a corporate deadlock and plan accordingly, and it is desirable for the company and its lawyers to take precautions to prevent a deadlock from occurring. First, the corporation's executives and legal personnel should establish a tie-breaking mechanism that can break the balance between shareholders or directors, or design a countermeasure against a deadlock in advance. To this end, the corporation may make shareholders reach an agreement in advance that can settle disputes by the way of the sale of the corporation, stock purchase by a related party, appointment of a third-party director, voluntary dissolution, arbitration, etc., through its articles of incorporation, bylaws or stockholders' agreements. In addition, as an “exit strategy,” the corporation's lawyers must prepare methods of valuation and sale to secure the invested value of the stocks. And to avoid unexpected or unwanted results, their customers who are stuck in a deadlock need to be encouraged to resolve the disputes through negotiation and mediation.