주주평등원칙의 재정립에 관한 시론(試論)

The principle of shareholder equality ("PSE") means that “shareholders in a legal relationship with a company should receive equal treatment based on the number of shares they hold.”. It is necessary to examine whether the PSE is a supreme principle or fundamental principle of corporation law. Korea has historically understood the PSE as the supreme principle or fundamental principle of corporation law, and has taken the position that when shareholders are treated differently through an agreement that grants superior rights or benefits to some shareholders, case law has applied the PSE without considering the specific circumstances and held that it is invalid in the absence of special circumstances. However, in 2023, the Supreme Court took a flexible stance and provided criteria for determining (i) whether differentiated treatment of some shareholders is possible and (ii) when it is possible. In Germany, the PSE was established to protect minorities from majority control, so it is based on the historical background and special circumstances of Germany and can be replaced by the duty of loyalty, so it is difficult to conclude that it is the supreme principle or fundamental principle of corporation law. In Japan, the PSE is not considered to be the highest or most fundamental principle of corporation law, given that the Japanese Supreme Court has ruled that differentiated treatment of certain shareholders may be authorized in exceptional cases where the corporate value of the company is impaired and the common interests of the company and its shareholders are infringed. In the United States, while common law recognizes the equal treatment of shareholders, corporation law does not recognize the PSE as a fundamental principle of corporation law. The United States recognizes as an established principle that stockholders need not always be treated equally for all purposes. Therefore, the United States approaches the illegality of a transaction from the perspective of a breach of a director's fiduciary duty, not the PSE. It is not easy to view the PSE as a supreme principle or fundamental principle of corporation law for the following reasons. First, the PSE is not a universal principle of corporation law that transcends the legal systems of different countries. Second, the PSE is not the only way to protect minority shareholders from controlling shareholders. Third, exceptions to the PSE already exist in the Korean commercial law. Fourth, the PSE, by its very nature, is rigidly applied and may not be specifically justified in individual cases. Therefore, instead of the PSE, it is better to respect the business judgment of directors and approach the breach of the duty of care in the exercise of business judgment and the breach of the director's duty of loyalty in situations of conflict of interest. It is also appropriate to approach the controlling shareholder-involved transaction under a separate business judgment rule.