행동주의 펀드와 주주의 비례적 이익―에스엠 사례(서울동부지법 2023.3.3. 선고 2023카합10034 결정)를 소재로―

This article deals with the recent activities of activist funds, especially SM’s case, from the perspective of shareholders’ proportional interests. The main cause and limitation of the rapid rise of activist funds lies in the concept of fiduciary duty of a director under which the director bears the obligation only to the company and but not to its shareholders. In this article, SM cases are summarized and the ‘events’ that require corporate legal attention in this process are analyzed such as; ① the agreement between Align and SM, ② SM’s issuance of new shares/convertible bonds to Kakao, ③ tender offer by Hive and Kakao and ④ SM’s acquisition of treasury stock during Hive’s tender offer period. In order to support the activities of activist funds and at the same time ensure that shareholders’ interests are not infringed by activist funds, it is necessary to provide the rules of the game to the capital market by including the protection of shareholders’ interests in the scope of directors’ duty of loyalty and care. Regarding the issuance of new stocks/convertible bonds, the court considered the core of the problem as the infringement of the proportional interest of shareholders. It is hoped that the pending revision of the Commercial Act will be passed as soon as possible so that the directors’ duty of loyalty include the protection of shareholders’ proportional interests.