전자주주총회의 상법 도입시 그 개최 및 운영에 관한 법적 쟁점*

Abstract

As the amendment to the Commercial Act for the introduction of virtual shareholder meetings was announced on August 24, 2023, the work to establish a legal basis for virtual shareholder meetings in the Commercial Act of Korea has accelerated. When introducing the virtual shareholder meetings into Commercial Act of Korea, it is important to ensure that the holding and management of the virtual shareholder meetings can function in a way that expands shareholder attendance without restricting it. The virtual shareholder meetings should guarantee shareholder rights to substantially the same level as on-site shareholder meetings, while taking into account the burden on the company due to holding the virtual shareholder meetings in a balanced manner. In this study, proposals are made regarding the direction of the virtual shareholder meetings system to be introduced by our Commercial Act with the abovementioned aspects in mind. Regarding the legal basis and holding issues of the virtual shareholder meetings, the following suggestions were made. Both the ‘hybrid virtual/attendance shareholder meetings’ and the ‘virtual only shareholder meetings’ should be recognized only when stipulated in the articles of incorporation (opt-in method). A new provision should be established that shareholders who attend the virtual shareholder meetings are deemed to have attended the place of convocation in person under Article 364 of the Commercial Act. Article 363 of the Commercial Act should be amended to clarify that this provision applies to notices convening virtual shareholder meetings, and to specify that both written and electronic methods of obtaining consent from each shareholder are possible. In the case of holding requirements, a new provision need to be enacted in the Enforcement Decree of the Commercial Act, requiring the company to establish a reasonable institutional and technical foundation related to guaranteeing shareholder rights as a common requirement for hybrid virtual/attendance shareholder meetings and the virtual only shareholder meetings. As a requirement that only applies to virtual only shareholder meetings, it was proposed to prepare measures to protect the shareholder rights of shareholders who cannot use electronic communication methods. Additionally, this study proposed establishing new regulations on minority shareholder rights in relation to changes in the method of holding virtual shareholder meetings under the Commercial Act. When a virtual only shareholder meeting is held, certain restrictions may occur in the exercise of shareholder rights by minority shareholders and there is a possibility that the company may distort the proceedings in a favorable direction, so minority shareholders need to prevent this possibility. The following suggestions were made regarding management issues of the virtual shareholder meetings. When holding an hybrid virtual/attendance meeting, shareholders must attend only one of the on-site shareholder meeting or the virtual shareholder meeting. When a company holds a hybrid virtual/attendance shareholder meeting, attendance at the virtual shareholder meeting can be operated as a pre-registration system. It would be appropriate for companies to restrict shareholder representatives from attending hybrid virtual/attendance shareholder meetings. The method of verifying the identity of the shareholder should be in accordance with the method suggested by the company for verifying the identity of the shareholder in addition to the method of verifying the identity of the shareholder in electronic voting. In the case of inquiries, it was proposed that in order to guarantee shareholders’ right to ask questions, the company should guarantee shareholders the opportunity to ask questions in real time and share shareholders’ inquiries in real time, while limiting the number and time of inquiries to ensure smooth management of the shareholder meetings. Opportunity to submit agendas must be guaranteed, however it is possible for a company to receive agenda submissions only from shareholders attending the on-site shareholder meeting at hybrid virtual/attendance shareholder meetings. The exercise of voting rights in real time must be guaranteed, and the effectiveness of prior voting rights is lost when a shareholder who has exercised prior voting rights exercises new voting rights at an on-site shareholder meeting or an virtual shareholder meeting. This study also reviewed the proxy voting and non-unified voting rights at the virtual shareholder meetings. In relation to communication failures, it was proposed to provide a new regulation that if a defect in the resolution method occurs due to a communication failure, a lawsuit for cancellation of the resolution cannot be filed unless the electronic communication failure occurred due to the company’s intention or gross negligence. In addition, it is needed to explicitly stipulate the authority to postpone or continue the virtual shareholder meeting in cases where communication failures cause significant disruption to the proceedings. It is hoped that discussions on the legal issues of the virtual shareholder meetings will become more active with the amendment of Commercial Act, and ultimately the virtual shareholder meetings system in Korea would be designed in a way that can operate smoothly while expanding shareholder rights.