순환출자기업 간의 의결권제한문제에 관한 고찰 -미국 Delaware주 회사법 및 판례를 중심으로-

Abstract

The Korean presidential election, which is scheduled to take place on Dec. 19th,2012, is now just around the corner. The campaigners of each camp are eager to develop various commitments that their candidates will implement after he/she is elected as the president of the Republic of Korea. Among such commitments, there is one somewhat curious and innovative idea that will dramatically reform ownership structure of the Korean Zaibatsu or Chaebul (combined group of enterprises) through restriction on voting rights of shares that the owner of the Chaebul holds under circular ownership. One scholar has reported that we can find legislative examples of restricting voting rights of the majority shareholders from the United States, Japan and Germany. This report has triggered an intellectual curiosity among commercial law scholars on the facts; about whether such legislative examples exist in real, and if they do, what the contents of such legislations are. This writer was also interested with this report and eventually got an opportunity to scrutinize foreign legislative models. This writer has examined the Delaware General Corporation Law §160 paragraph (c) on “Corporation’s Powers Respecting Ownership, Voting, etc., of Its Own Stock; Rights of Stock Called for Redemption.” Also, this writer has reviewed the Delaware case “Marvin M. SPEISER v. Leon C. BAKER and Health Med Corporation, 525 A.2d 1001(1987).” Further, the writer has discussed on the Japanese Corporation Law Articles 135 and 308 in addition to the Implementation Decree to the Japanese Corporation Law Article 67 but under the cross holding circumstances, not under the circular ownership circumstances. Other countries, for example, the German Aktiengesetz Articles 71d, 19 paragraph 1, 20, 328 paragraph 1, restrict voting rights if one shareholder holds over than 1/4 of total outstanding shares under the cross holding circumstances. Similarly, the French Company Law also restricts voting right when one shareholder holds over than 10% of total outstanding shares under the cross holding circumstances. The Korean Commercial Code Article 369 paragraph 3 also restricts voting right of shareholders who hold over than 10% of total outstanding shares. This writer has found that no country prohibits circular ownership itself nor generally restricts voting right under the circular ownership. This writer considers that it is not possible to restrict voting right under the circular ownership. Only the voting right of majority shareholders can be successfully restricted in case of cross holing circumstances or when a corporation holds its own stocks. Speiser v. Baker case was also related to the cross holing of shares and to the problem of the corporations’ own stocks. Thus, the contents of the report mentioned above are in part not true.