주주평등원칙의 분석과 재구성 - 지배주주의 부당한 사익추구에 대한 구제수단을 모색하기 위한 해석론과 입법론의 관점에서 -

The principle of equal treatment of shareholders (i.e. equality of shares and shareholders) signifies that shareholders have equal rights in their legal relationship with the company. This means that shareholders should be treated equally according to the number of shares they hold, thus explaining the principle as related to shareholdersʼ proportional rights. The Supreme Court ruling on July 27, 2023 (Case No. 2022da290778) also clarifies that the principle of equal treatment of shareholders means that shareholders should be treated equally according to the number of shares they hold in their legal relationship with the company. While the protection of shareholdersʼ proportional(or ratable) interests is somewhat implemented through the principle of equal treatment in Korean commercial law, there has been serious discussion about explicitly including shareholdersʼ proportional interests in directorsʼ fiduciary duties. This paper aims to address the issue of controlling shareholders (including those who exercise de facto control using affiliate shares) pursuing private interests while exerting absolute control over the company. Designing transaction structures disadvantageous to companies with lower equity stakes to pursue the private interests of controlling shareholders (including interests based on familial or economic relationships with third parties) results in wealth transfer, known as tunneling. Addressing tunneling issues has been a longstanding challenge in corporate law. This paper analyzes various forms of controlling shareholders exploiting company assets for private gain, naming the phenomenon ʻtunnelingʼ after a case where assets were siphoned through an actual tunnel in the Czech Republic. This issue is particularly problematic in Korean companies. Additionally, there were four Supreme Court rulings in 2023 addressing the principle of equal treatment of shareholders. Given the numerous reasons to re-examine the principle of equal treatment of shareholders, it is necessary to move away from a rigid view and reanalyze and reinterpret the principle within the framework of commercial law. This includes reconstructing the principle in relation to the remedies provided by commercial law or the duties of directors. From the perspective of directorsʼ duties, the principle of equal treatment of shareholders means fair or equitable treatment of shareholders. To protect the interests of minority shareholders from unfair discrimination, especially from controlling shareholdersʼ improper pursuit of private interests, it is essential to determine the necessary interpretive theories. If the current commercial law system is inadequate, additional legislative proposals should be considered, including transforming and improving the framework for annulment of unfair resolutions (Article 381 of the Commercial Act).