주주총회의 전자화에 관한 주요 쟁점 검토

The Ministry of Justice announced the amendment to the Commercial Act in August 2023. This amendment contains the followings: 1) Specified the method of shareholder consent in relation to the notice of convening a general shareholders’ meeting through electronic documents. 2) Allowed all companies to hold a parallel electronic general meeting of shareholders or a full electronic general meeting of shareholders as stipulated in the Articles of Incorporation. 3) A number of new provisions regarding shareholders’ attendance and voting rights at electronic general shareholders’ meetings were established. However, some regulations contain problems and shortcomings, so the following legislative supplementation is necessary. First, the supplementary contents of the regulations related to holding general shareholders’ meetings are as follows: That is, 1) In Article 364, the phrase “unless otherwise provided in the articles of incorporation” must be deleted. 2) The board of directors must freely adopt a parallel electronic general meeting of shareholders even if it has no basis in the articles of incorporation, and a full electronic general meeting of shareholders must be held only when it is based on the articles of incorporation. 3) “Notwithstanding Article 364, Paragraph 2” in Paragraph 1 of Article 364-2 shall be amended to “Notwithstanding Article 364.” 4) Article 364-2, Paragraph 1 states, “The company may, by resolution of the board of directors, determine a method in which shareholders can attend by means of electronic communication in addition to the method prescribed in Article 364. However, the company may not implement this in accordance with the provisions of the Articles of Incorporation.” 5) Minority shareholders’ rights regarding changes in the type of electronic general shareholders’ meeting must be recognized. 6) Institutional support should be provided first by fostering multiple operating institutions, including the Korea Securities Depository, so that all stock companies can hold and operate electronic general shareholders’ meetings whenever they want by paying a certain fee. Next, the supplementary contents of the regulations related to the operation of the general shareholders’ meeting are as follows: In other words, 1) It must be clearly determined on what basis shareholders will be judged to attend the electronic general shareholders’ meeting. 2) The free participation and exit of shareholders in electronic general shareholders’ meetings must be guaranteed, but shareholders must be prevented from exiting at the stage of deciding whether to accept or reject an agenda item. 3) Shareholders’ right to ask questions must be guaranteed, but its abuse must be prevented and the company’s arbitrary proceedings must be blocked to ensure fairness in proceedings. 4) The consent proposal must be recognized even by shareholders present at a complete electronic general meeting of shareholders, but only while the electronic general meeting of shareholders is in progress. 5) Proxy exercise of voting rights must be permitted even in a complete electronic general meeting of shareholders, and if this is prohibited by the articles of incorporation, etc., it must be subject to an action to cancel the resolution of the general shareholders’ meeting. 6) In relation to failures in electronic communication means, the pros and cons of the period during which the communication failure occurred must also be considered. 7) Institutional support and fostering should be provided starting from related organizations that can hold and operate a stable and systematic electronic general shareholders’ meeting.