주식회사 이사 선임 제안 주주에 대한 사전통지청구

In a stock company, the election of directors is the unique authority of shareholders. Shareholders may exercise their voting rights, such as approval, opposition, or abstention, against the candidate for director proposed by the company. Furthermore, it is possible to recommend candidates for directors by itself by exercising the right to propose shareholders. According to the operating technology of the general shareholders' meeting, shareholder proposals must be proposed by a certain point before the general shareholders' meeting is held. However, it is questionable whether the board of directors can request the proposed shareholders to provide detailed information if the contents of the shareholder proposal for appointment of directors do not meet the information the company wants to know. In this regard, Article 211(d) of the Delaware General Companies Act stipulates that a listed company may request information if it has provisions in its affiliated articles of incorporation. This is often referred to as a prior notice clause. Most listed companies in the United States have a prior notice clause in their affiliated articles of incorporation. Some of the states of Maryland and Canada are the same. Recently, Japan is also showing interest in this clause. In Japan, if it is necessary to introduce this system, a method of recognizing it through the articles of association in accordance with the principle of corporate law or articles of association autonomy is being discussed. This clause is a completely different system from Article 363 of the Korean Commercial Act that stipulates that shareholders make shareholder proposals to directors six weeks before the general meeting date. The pre-claim clause is a system that takes into account that if shareholders who are not in favor of the current board of directors recommend candidates for directors, the company needs time and information to inform and defend their intentions and risks to enter the board. First of all, it is necessary to thoroughly review whether this system is necessary in Korea, and even if necessary, it should be designed so that the introduction of this provision does not interfere with or suppress the right to appoint directors at the general shareholders' meeting, which is the sole authority of shareholders. The U.S. Court of Justice, especially the Delaware Court of Equity, maintains a consistent position that the prior notice clause is necessary for the proper exercise of shareholder rights. This system largely prevents distortion of voting rights by providing information necessary for the judgment of shareholders who exercise voting rights, and as a means for the board of directors to obtain information necessary for the company's management. It may be one of the defenses against attacks by shareholder activism or unfair corporate purchases. In the United States, the deviation or abuse of the system is suppressed through precedents because this provision may infringe on shareholders' voting rights. In practice, if the board of directors abuses this system and unfairly interferes with the exercise of voting rights by shareholders, the Delaware Court of Equity has denied or interpreted the prior claim in a limited way. In the case of Korea, the situation is not much different from that of the United States and Japan in that it is necessary to protect the current management from shareholder activism or hostile takeover bids or to provide sufficient information so that shareholders can exercise their voting rights appropriately. I propose that our academia and companies continue to discuss the introduction of this system.