회사지배구조에서의 부수정관의 역할 - 미국 회사법을 중심으로 -

The relationship between shareholders’ power to adopt bylaws and the board of director’s power to manage the business and affairs of the corporation has been an unsettled, and contentious, issue. The Supreme Court of Delaware, in CA, Inc. v. AFSCME Employees Pension Plan, directly addressed this issue and established a framework for examining proposed shareholder bylaws. The case arose through the first use of the newly amended certification procedure that permits the SEC to certify questions to the Supreme Court of Delaware for resolution. AFSCME submitted a bylaw for inclusion in CA’s 2008 proxy materials that would require CA to reimburse the reasonable proxy expenses of a shareholder who nominated a short slate of directors and had at least one nominee elected. CA sought to exclude the proposed bylaw and requested no-action relief from the SEC. Faced with conflicting legal opinions from Delaware law firms regarding the bylaw’s permissibility, the SEC utilized the Delaware certification procedure and certified two questions to the Supreme Court of Delaware: (1) Was the proposed bylaw the proper subject of shareholder action?; and (2) If enacted, would the proposed bylaw cause CA, Inc. to violate Delaware law? After an expedited briefing and argument the Court answered both questions in the affirmative. The bylaw was the proper subject of shareholder action because it related to the director election process. However, lacking a fiduciary out, it would prevent CA’s board from fully discharging its fiduciary duties, causing CA to violate Delaware law. Examination of the reasoning in CA reveals that the court was willing to look past the mandatory nature of the bylaw because it related to the director election process. If the same method of analysis is applied to other bylaws, outside the director election context, such bylaws would be found impermissible. While CA was a victory for shareholders because it found the proposed bylaw to be permissible under Delaware law, the court’s analysis will likely limit the permissibility of future shareholder bylaws that encroach upon the board’s power to manage the business and affairs of a corporation.