주주간계약의 효력과 그 위반에 대한 구제- 의결권구속약정의 경우 -

In the context of shareholders’ agreements, questions arise as to when such agreements are valid and, if valid, what remedies are available for their breach. This article examines these issues specifically with respect to voting agreements. The enforceability of voting agreements was initially doubted in many jurisdictions but has gradually come to be acknowledged. Early decisions, guided by abstract notions of the freedom to exercise voting right, shareholder’s fiduciary duty, and the function of the general meeting, often deemed these agreements invalid. Over time, however, a more detailed analysis has narrowed the scope of invalidity. This doctrinal evolution, in turn, has influenced available remedies. Even where voting agreements were deemed valid, courts at first refused to grant judicial enforcement, out of deference to voting freedom and the autonomy of general meeting. Today, however, many jurisdictions that acknowledge the validity of voting agreements also permit judicial enforcement and are exploring available and effective enforcement mechanisms. In this regard, provisional injunctions relating to the exercise of voting right, actions for counter-resolution, and actions to annul the resolution in violation of the agreement may be invoked. Each remedy raises issues concerning the availability of injunctive relief against declarations of intent, the possibility of restorative remedy or remedy to remove the effects of violation of negative duties, and the extension of grounds for annulling resolutions.