“지배권 프리미엄”에 근거한 주주의 충실의무 인정과 그 집행방법– 특별이해관계 없는 “지배” 소수주주의 충실의무와 그 집행을 중심으로 -

Abstract

Although the Korean Commercial Code declares the majority rule in shareholders’ meeting in a corporation, it provides an important exception that where the majority shareholders have an interest in a proposed resolution, their voting rights are suspended in the resolution. In such a case, because the interested majority are excluded from the voting, non-interested minority shareholders shall determine the resolution, and the uncommon minority rule prevail in the case. In this article, it is strongly argued that in this exceptional case, the non-interested minority should be subject to fiduciary duty to consider the collective shareholders’ interests, because the minority exercise a determining power for the entire shareholders including the excluded majority. Therefore, where the controlling minority vetoes the resolution extremely unfairly, the excluded majority can bring a suit to cancel or vary the extremely unfair resolution under the s.381 (1) of the KCC. It is also argued that although the KCC does not declare majority shareholders’ fiduciary duties towards the collective shareholders, such fiduciary duties are imposed upon the majority on the basis of their control premium enjoyed under the majority rule regime, and therefore where the resolution carried by the majority is extremely unfair, the same remedy under s.381(1) shall also be available to the minority shareholders who suffer minority discount.