회사지배구조에 대한 사적 조정(Private ordering)과 그 한계 - 델라웨어주 회사법 개정 내용을 중심으로

This paper examines the 2024 amendments to the Delaware General Corporation Law (DGCL), focusing on their implications for private ordering in corporate governance agreements and delineating potential regulatory adaptations for Korean law. Delawareʼs Court of Chancery, in a series of rulings in 2024, held non-charter agreements governing corporate governance between a company and its shareholders to be presumptively invalid. Responding to these rulings, the DGCL now formally empowers boards to structure corporate governance through contracts with shareholders. However, in the synopsis of the amended DGCL, it is emphasized that director fiduciary duties set a boundary on private ordering, preventing the unlimited application of such arrangements. In Korea, Article 393(1) of the Korean Commercial Code could similarly support interpretations limiting agreements that infringe upon board authority, aligning with the Court of Chanceryʼs stance. However, to preserve the functional utility of widely utilized investor-protection agreements, it is essential to apply this restriction judiciously and prioritize mandatory regulations controlling conflicts of interest. Additionally, in line with the 2023 Korean Supreme Courtʼs recalibration of the principle of equal treatment of shareholders toward the protection of collective benefits of the shareholders, Korean law could also recognize directorsʼ duties to safeguard the interests of the corporation and all shareholders in corporate governance agreements. Consequently, such fiduciary obligations should be a primary consideration when assessing the enforceability and limitations of corporate governance agreements. This paper proposes detailed criteria and institutional reforms: (1) private ordering attempts by controlling shareholders and affiliates should be subject to rigorous fairness review, with mandatory self-dealing regulations taking precedence; (2) investor-protection agreements should generally be recognized as valid contractual obligations, thereby promoting both board flexibility and shareholder protection, with directors held accountable for breaches of fiduciary duty; (3) even if a company violates a specific shareholderʼs prior approval clause, enforcement beyond claims for monetary damages should be permitted only in a limited manner. To include a specific shareholderʼs prior approval as a validity requirement for board or general meeting resolutions, it must be stipulated in the articles of incorporation. Additionally, measures such as establishing an independent director committee or designing fiduciary-out clauses can be considered as alternatives to mitigate concerns over infringement of board authority or directorsʼ discretion; (4) for public companies, corporate governance agreements, being material to general investors, should be meaningfully disclosed through post-IPO oversight measures, not just recommended for deletion during the IPO review process.