회사와 신주인수인 간의 투자자보호약정의 효력- 주주평등원칙과의 관계를 중심으로 -

Investors and the company (i.e., issuer) often enter into a share purchase agreement and ancillary agreements, which include certain provisions designed to protect the interest of the investors. Agreements that are used by venture capitalists are typical examples. Through such provisions, the investors attempt to secure control over management, access to information, protection from dilutive events, and reliable exit mechanism. Such provisions may be misunderstood as inconsistent with the ʻʻdoctrine of equal treatment of shareholders.ʼʼ In order to refine the scope of the doctrine, this paper proposes two guidelines in interpreting and applying the doctrine. First, the equal treatment doctrine should be invoked only supplementarily after other doctrines are invoked and applied. Second, the equal treatment doctrine should be understood flexibly rather than strictly, so that the doctrine may not preclude ʻʻreasonably justifiableʼʼ unequal treatment of shareholders. Contractual rights granted to certain venture capital (and not granted to other shareholders) are an example of legitimate unequal treatment. Under such guidelines, a corporationʼs commitments to certain shareholders that guarantee certain amount of profits or secure refund of capital are invalid. On the contrary, arrangements provided for the benefit of investors to solicit them, such as consent rights and information rights, are not in breach of the equal treatment doctrine. The strict and fundamentalist interpretation of the equal treatment doctrine should be avoided because it may lead to an absurd conclusion that provisions widely used elsewhere in the world are prohibited in Korea under the equal treatment doctrine.