소수주주 다수결에 대한 小考 - 특히 상법 제368조 제3항의 개정과 관련하여

Majority-of-the-minority voting(hereinafter, ‘MoM voting’) is a decision-making method that enhances the legitimacy of a transaction through the approval of disinterested minority shareholders. According to Delaware corporate law, if the controlling shareholder or directors obtain the voluntary consent of disinterested minority shareholders for transactions involving conflict of interest, legal risks are purged by shifting the burden of proof or relaxing the judicial review standards. This paper reviews the evolution of Delaware case law relevant to MoM voting, and analyzes current Korean Commercial Code(hereinafter ‘KCC’) Article 368(3) which prohibit shareholders having ‘special interest’ in a resolution of the shareholders’ meeting from exercising voting right, in the context of MoM voting. The provision needs to be revised and amended for its limited predictability and the possibility of unfair reverse discrimination. After analyzing the revocation of unfair resolution, the method being claimed as an alternative measure for ex-post control, this paper presents a legislative proposal that allows each individual company to restrict the voting rights of interested shareholders by the articles of incorporation in an opt-in method, within the limit enumerated in the KCC, as an ex-ante control for unfair exercise of voting rights by interested shareholders. It should be noted that the above discussion presupposes the concept of ‘(controlling) shareholder’s duty of loyalty’. Alternative methods to introduce MoM voting(interpretation of the courts, guidelines of regulatory agencies) will be briefly examined as well.