사적 계약에 의한 기업지배구조의 개편 - 대법원 2021다293213 판결이 재정립한 주주평등원칙의 함의를 중심으로

Abstract

As early-stage companies raise capital, they face increasing pressure from investors to restructure corporate governance, and investors seek to limit controlling shareholders’ management decisions against their interests through protective provisions that require investors’ approval for designated major management decisions. The subject case centers on whether such protective provisions on consent rights violate the principle of shareholder equality. In recent years, there have been a number of studies seen to the effect that the rigid application of the principle of shareholder equality denies the effectiveness of agreements agreed between the parties, harms the safety of transactions, and hinders the development of corporate law. The subject case is significant in that it accepted the view that the principle of shareholder equality should be transformed into a concept of substantive equality rather than formal equality, by giving room for further examination of whether there is any reasonable reason for the discrimination between shareholders, from the existing case in question, examining whether there is discrimination between shareholders. On the other hand, the subject case concluded that there are special circumstances to justify discrimination between shareholders through the protective provisions on consent rights as such discrimination benefits the company and the shareholders as a whole, and in the course of its argument, it refers to the subscription price that may contribute to the company’s liquidity. However, this is limited to accounting and financial benefits and thus is not balanced by the fact that the benefits to investors and the relative disadvantages to other shareholders caused by protective provisions on consent rights are about intangible and structural control rights. Therefore, in order to determine the substantive equality of the subject case, the intangible and structural benefits to be given to the company and shareholders as a whole should be explored. In this article, the author argues that the subject case implies that the protective provisions on consent rights are understood as a check on controlling shareholders and management, and that the process of diversifying the decision-making body by distributing control through private contracts per se is an improvement in governance and an intangible and structural benefit to the company and shareholders as a whole. Given that the defendant company in the ruling is listed on KONEX market, the subject case has a further significance in that the subject case extended the discussion of governance restructure via private contracts even to such public companies. However, with respect to the legitimacy of restructuring the corporate governance via private contracts, there are views that raise questions on the grounds of possible violations of the principle of shareholder equality, the lack of public disclosure, and the limitation of enforceability. In order to overcome these limitations, the parties entering into a shareholders’ agreement including protective provisions on consent rights should consider disclosing the contents of the agreement in the articles of incorporation and respect the effectiveness of the agreement stated in the articles of incorporation from a legal interpretation perspective.