주주제안권의 내용상 한계와 이사회의 심사･변형 상정 가능성 - 이사 추가선임 및 집중투표를 청구한 사례들을 중심으로 -

Abstract

The efforts to secure the competitive advantages over the battle of management right through the shareholders’ right to make proposal have been on the gradual rise. The shareholders challenging to get the management right have usually requested “the additional appointment of a plural number of directors and cumulative voting” in the manner of “exercising the shareholders’ right to make proposal”, since the Board of Directors (“BOD”) of a company shall submit the shareholders’ proposal as an agenda item of a general meeting of shareholders except where such proposal falls into any of the causes of rejection (Article 363.2 (3) of Commercial Act, Article 12 of Enforcement Decree thereof). However, general matters as to the convocation and operation of a general meeting of shareholders shall be decided upon and by the BOD unless otherwise provided for in the laws. Accordingly, it will be the problem as to how much the BOD has the right to review and take measures into the contents of the shareholders’ proposal. In particular, if the shareholders’ proposal does not fall into any of the causes of rejection, then the following issue comes out, that is, whether the minority shareholders’ proposal shall be submitted as an agenda item of a general meeting of shareholders as proposed, or whether the BOD may partly amend the contents of the shareholders’ proposal and submit them to the general meeting of shareholders to the extent that the BOD is entitled to exercise properly its authority to operate the shareholders’ meeting. However, any established case judgments as to such issue have not been substantially made. Furthermore, any academic discussion or review has almost never been reviewed or discussed. Meanwhile, several lower courts’ judgments have been announced in series recently as to the cases, in which the BOD has amended the shareholders’ proposal for an additional appointment of a plural number of directors and cumulative voting and submitted the amended proposal as an agenda item of a general meeting of shareholders. However, the judgments of such lower courts as to the above issue have showed contrary or inconsistent reasoning. Recently, the use of shareholders’ proposal system has been increased rapidly. Among such use, the significant number has been of the additional appointment of a plural number of directors and cumulative voting in connection with the management right. As such, it is deemed to be necessary to make and establish the clear and concrete case judgments and academic views as to such issue from now on. Accordingly, the author intends to introduce the relevant judgments of the lower courts focusing on the case of the COMPANY P, in which the minority shareholders requested an additional appointment of a plural number of directors and cumulative voting in the manner of shareholders’ proposal but the BOD amended the contents of the proposal and submitted such amendment as an agenda item of a general meeting of shareholders, and thus the legal issues were raised and arisen from the above consequently. And, the shareholders’ right to make proposal has some limitation of its contents, which can be concerned only on the resolution on “the agenda item” and “agenda”, which falls unto the matter itself, among the matters of convocation and operation of the general meeting of shareholder, as provided for the authority of the general meeting of shareholder under the laws or the articles of incorporation. It shall be pointed out inappropriate and irrelevant of the corporate practices’ understanding that the minority shareholders may exercise naturally the shareholder’s proposal right covering to the general matters such as “processing order of general meeting of shareholders” or “method of resolution”. Furthermore, the BOD shall review the relevance of shareholders’ proposal and submit as an agenda item and/or agenda of a general meeting of shareholders, and procure it to be processed for resolution unless there is any legal defect. Nevertheless, it shall be argued that the shareholders’ proposal shall not be submitted to the general meeting of shareholders as proposed only in original. In sum, the shareholders’ proposal is recognized as relevance by itself, but the content as proposed to be submitted to the general meeting of shareholders is deemed to be inappropriate in the view of efficient operation of the meeting of general shareholders. And thus, it is deemed to be proper and appropriate that BOD can amend the shareholders’ proposal and submit the amended proposal to the general meeting of shareholders to the extent that such amendment shall not harm the critical purport of the shareholders’ proposal.