공익법인 출연 주식의 권리조정에 관한 입법론적 연구

Nonprofit organizations are sometimes abused as a way of circumventing regulatory restrictions and expanding the clout of controlling shareholders while enjoying various tax benefits. The Monopoly Regulations and Fair Trade Act of Korea was amended in 2020 to limit voting rights of such nonprofit organizations over the shares they hold in their affiliate companies. There is another legislative proposal, under which the nonprofit organizations waive their voting rights over the shares they hold and, in return, they are provided with preferred dividends with respect to such shares. This paper verified the legitimacy of such idea, analyzed legal issues of such a proposal, and presented an amended version of the legislative proposal. More specifically, this paper designed a mechanism where (i) certain qualified nonprofit organizations may notify a company (in which the organization has certain percentage of shares) of its intent of “rights adjustment” (meaning limiting voting rights and receiving preferred dividends), (ii) the company should include such a proposal in the agenda of its annual shareholders meeting (while the nonprofit organization and its affiliates cannot exercise their voting rights on the matter of “rights adjustment” at the meeting), and (iii) if such a proposal is approved at the shareholders meeting, the nonprofit organization has a preferred dividends rights (as approved by the other shareholders) with respect to the shares of the company and cannot exercise voting rights except for certain enumerated items, so long as the “rights adjustment” approval remains valid.