위임장권유규제의 비교분석과 그 시사점

Abstract

In recent years, there are some cases where a proxy contest is launched due to the conflict between the management and activist shareholders. In Korea, the Stewardship Code was enacted and shareholder activism's growth has been striking, so the importance of the restriction on proxy solicitation is becoming bigger. In Korea, the restriction on proxy solicitation has been focused on preventing the management from abusing proxy solicitation which was used to secure quorum for resolutions by a general meeting of shareholders. Under the present situation in which the importance of communication between the company and shareholders and between shareholders is becoming bigger and bigger, this article tried to review the restriction on proxy solicitation to make it work efficiently and properly. This article compared and analyzed the restriction on proxy solicitation in the US, Japan and Korea, in the aspect of ① the scope of application, ② filing and delivering the proxy form and reference documents, ③ proxy solicitation before delivering reference documents, ④ matters to be stated in reference documents, ⑤ E-Proxy ⑥ inspecting or printing the register of shareholders, ⑦ shareholder proposal, ⑧ ‘fair use of proxy form’ and enforcement, ⑨ the cost of proxy solicitation and tried to find its implications for Korea. In relation to ①, ⒜ even though ‘an solicitation where the total number of persons solicited is not more than ten’ is prescribed as exemption from the restriction on proxy solicitation, it would be necessary to consider the way to apply ‘fair use of proxy form’ section(Financial Investment Services and Capital Markets Act § 154) to the used materials as qualified exemptions in the US. ⒝ It would be necessary to consider the way to classify exemption types into several types such as ‘unqualified exemptions’, ‘qualified exemptions’ like the US, and exclude a person from all of the restriction or some of the restriction on proxy solicitation according to each types. In relation to ②, It would be necessary to discuss in depth whether to make it mandatory to file other soliciting materials with the Financial Services Commission and the Korea Stock Exchange besides the proxy form and reference documents in the middle of a proxy contest. In relation to ③, It would be necessary to discuss in depth whether to allow a solicitation to be made before furnishing security holders with reference documents under certain conditions referring to the regulation in the US, considering the importance of the communication between shareholders in the early stage of the decision-making processes. In relation to ④, It would be necessary to consider the way to require the proxy solicitor to disclose on reference documents the extent to which their economic interest in the shares was shorted or hedged as well as ‘the class and number of stocks held by the proxy solicitor and his/her specially related persons’ in the ‘Regulations on The Issuance, Disclosure, etc. of Securities’. In relation to ⑤, the restriction on proxy solicitation in the US has become a model for that in the Korea and according to SEC Rule 14a-16A, registrant needs to send the security holder a notice of internet availability of proxy materials. Thus it would be necessary to consider the way to prescribe this duty of notification in the ‘Enforcement Decree of The Financial Investment Services and Capital Markets Act’. In relation to ⑥, ⒜ to prevent the company from having the advantage of the shareholders in the middle of attacking each other, if the company holds a roster of beneficial shareholders, the shareholders should also be allowed to inspect or print it. ⒝ Under the electronic registration of shares system, it would be necessary to consider the way to allow the shareholders to inspect or print the register of shareholders reflecting the current status of shareholder ownership to ensure the effectiveness of the right to inspect or print it. In relation to ⑦, there is a doubt about the validity that the company is permitted to exclude a shareholder's proposal seeking to remove a director from office, so it would be necessary to review whether to permit the company to exclude a shareholder's proposal seeking to remove a director from office. In relation to ⑧, ⒜ if the violation of the restriction on proxy solicitation is serious, it would be reasonable to see it as a cause revocation of resolutions to secure the fairness of proxy solicitation. ⒝ The Financial Services Commission may suspend or prohibit solicitation to exercise voting rights by proxy according to ‘Financial Investment Services and Capital Markets Act’. But it would be necessary to discuss in depth whether to ban the exercise of voting rights in case of the violation of the restriction on proxy solicitation. In relation to ⑨, it would be necessary to consider the way to make the company to reimburse a shareholder for expenses incurred in soliciting proxies to a proper extent under some reasonable conditions such as garnering more than certain percent of the votes in favor of a shareholder’s resolution.