회사법상의 특별이해관계

Abstract

According to the English common law, “a shareholder is not debarred from voting or using his voting power to carry a resolution by circumstance of his having a particular interest in the subject matter of the vote, unless otherwise provided by the regulations of the company” (Burland v. Earle, [1902] AC 83). This principle applies also to directors when they vote as shareholders even though in so voting they further their personal interests. Not debarred from voting in principle, is also a shareholder in Germany, who has a particular interest in the subject matter of the vote. The German Stock Corporation Act prohibits the shareholders from voting, only if he votes for the exemption from his own liability to the company. In the year of 1981, the Japanese Commercial Code went also to the same direction as in England. Due to the legal nature of the share in a stock corporation as property, the shareholders can enjoy their rights attached to it, unless they abuse their rights to the detriment of the company and other members. Contrary to the shareholders, the directors should vote as fiduciary for the benefit of the company and its members. That is to say, that the directors must exercise their voting right bona fide in what they believe to be in the best interests of the company. A director being interested in transactions or arrangements with the company, is prohibited from participating in the decision-making process concerning it. This principle cannot be evaded by appointing an alternate director to vote instead. And a director who is disqualified by an interest from voting on a resolution cannot be counted towards the quorum for the resolution. In contrary to the global trend, section 368 subsection 3 of the Korean Commercial Code (abbreviated in the following as ‘KCC’) provides yet that “a shareholder having a particular interest in the subject matter of the vote is debarred from voting.” And the present section 381 of KCC provides that “if, a shareholder has been unable to vote in accordance with the provisions of section 368 subsection 3, the resolution is markedly improper and its adoption could have been prevented, had he exercised the vote, such a shareholder may take an action for the revocation or alteration of such resolution within two months from the date of such resolution”. The author points out that sec. 368 (3) KCC should be in the near future revised and amended.