의결권구속계약의 효력과 쟁송 방법에 관한 고찰

Abstract

In the case of a closed corporation composed of few shareholders, shareholders seek to enhance operational flexibility and agility by entering into shareholders’ agreements, particularly voting agreements, to circumvent procedural rigidity under commercial law. Apart from managerial efficiency, such agreements can lead to disputes among shareholders due to conflicts and changes in intentions. A recent decision by the Seoul Central District Court on May 30, 2024 (Case No. 2024KaHap20635) serves as a stark example highlighting disputes surrounding voting agreements. This case has reignited discussions on the validity and implications of such agreements. Therefore, this study examines the practical perspectives on existing practices concerning voting agreements. It discusses the enforceability of these agreements on companies from the viewpoints of contract, separation of ownership and management, and transaction safety. It argues that there are difficulties in interpreting that voting agreements have an immediate effect on companies under current commercial law. However, it also notes that persisting with legal interpretations as above, which disregard the operational realities of closed corporations, may increasingly diverge from practicality. In light of this, the study proposes utilizing corporate bylaws (articles of association) by incorporating the contents of voting rights restriction agreements, suggesting this approach as the most pragmatic method within the current legal framework. Furthermore, this study chronologically examines potential forms of disputes among shareholders that may arise when disputes occur based on the assumption that voting agreements only have contractual effects among shareholders. On the grounds that a shareholder violates the terms of a voting agreement before a resolution of a general meeting of shareholders, possible measures to prevent the meeting could include ① a provisional disposition prohibiting the exercise of voting rights, and ② a provisional disposition prohibiting the convocation or resolution of a general meeting of shareholders. The provisional disposition prohibiting the exercise of voting rights, by designating the opposing shareholders as the defendant, can convert their preemptive rights into contractual claims under the voting agreement. Conversely, a provisional disposition prohibiting the convocation or resolution of a general meeting of shareholders designates the defendant as the “company,” which makes it considerably challenging to treat contractual claims under the voting agreement as preemptive rights. In light of these considerations, the provisional disposition prohibiting the exercise of voting rights is deemed a practical means of litigation before a resolution of a general meeting of shareholders. Next, in cases where a resolution of a general meeting of shareholders has already been adopted contrary to the provisions of the voting agreement, minority shareholders may consider ① seeking a provisional disposition suspending the effect of the resolution of the general meeting of shareholders, and ② filing a lawsuit under commercial law to nullify or revoke the resolution of the general meeting of shareholders. The provisional disposition suspending the effect of the resolution of the general meeting of shareholders is a provisional measure aimed at establishing a temporary legal status. It requires a strong justification of preemptive rights and preservation needs, making it a less straightforward approach in litigation. With regard to lawsuits for revocation of the resolution of the general meeting of shareholders, whether “where voting rights were exercised in a manner contrary to the voting agreement” may be interpreted as “where methods for adopting a resolution are substantially unfair” under Article 376 of the Commercial Act should be considered. From a litigation perspective, if such exercise of voting rights is deemed significantly unfair in relation to principles of good faith in litigation matters, it can be constituted as a single lawsuit. Up to now, practical examples have generally rejected claims based solely on the contractual effects of voting agreements when voting rights were exercised contrary thereto. However, it is suggested to advance the view that such cases can be considered as subjects for litigation proceedings. Especially when a provisional disposition prohibiting the exercise of voting rights contrary to a voting agreement is issued, the actual benefits of such discussion become more prominent when shareholders exercise voting rights without following such disposition.