상법상 특별이해관계에 관한 해석론과 대안의 모색

Cases in which the issue of whether a shareholder or director has a “special interest” arises in resolutions of the general meeting of shareholders or the board of directors can take a wide variety of forms. However, relying solely on the abstract criteria of the personal-law theory (개인법설) adopted by prevailing academic opinion and case law makes it difficult in practice to clearly determine, in each specific case, whether a party is deemed to have such a special interest. Given that, under the current Korean Commercial Act, a person with a special interest is entirely deprived of voting rights, an overly expansive interpretation of the concept would risk paralyzing corporate decision-making by the majority. Accordingly, under the present statutory scheme, it is more appropriate to interpret the scope of special interest in a restrictive manner. On the other hand, if the scope is interpreted too narrowly, it becomes difficult to address adequately the wide range of circumstances in which the interests of the company and its shareholders or directors are substantively in conflict. This difficulty fundamentally stems from the fact that the current Korean Commercial Act mechanically links the existence of a special interest with the deprivation of voting rights. In this regard, it would be desirable to abolish the current system of ex ante exclusion of voting rights and replace it with an ex post control mechanism. Rather than mandating such a mechanism solely through legislative reform, however, it may be preferable—particularly in light of the recent introduction of directors’ duty of loyalty to shareholders—that, in practice, companies voluntarily subject conflict-prone transactions to approval procedures through a special committee of independent directors and/or approval by “majority-of-the-minority” shareholders. If courts, in reviewing such cases, come to treat the adoption of these procedures as a positive factor, and such decisions accumulate to form case law, this would provide a more desirable path forward.