상법상 이익공여금지규정의 주요쟁점 검토 -최근의 대법원 판례를 중심으로-

Abstract

Under the Commercial Act, no company may grant to any person a pecuniary benefit in connection with the exercise of his/her rights as a shareholder(§467-2(1)), if a company has given gratuitously any pecuniary benefit to a specified shareholder, such pecuniary benefit shall be presumed to have been given in connection with the exercise of his/her rights as a shareholder(§467-2(2)). But since there were few legal disputes concerning this provisions, the interpretation of major issues was dependent on the doctrine of scholars only. However, there have been two important Supreme Court cases recently concerning this provision. In this paper, after examining the facts and judgment points of the Supreme Court cases, I examined the problems related to the major issues raised in relation to them, and presented the following rational interpretation methods and legislative alternatives. The First, in Case 1, 1) it is invalid to change the contents of the Articles of Incorporation by a resolution of the Board of Directors; 2) the resolution of the General Meeting of Shareholders in which profits are granted is subject to cancellation; 3) although preliminary voting is possible, legislative amendments to its management are needed, 4) the appointment of a non-voting audit is void, and 5) the census on the cancellation of the resolution of the general meeting of shareholders based on a violation of the provisions on the prohibition of profit-giving should be interpreted as disallowing the court to discretion. The Second, the case of 2, 1) the committed amount by the share purchase agreement between the shareholder and the company simultaneously holding the position of the creditor and the shareholder is in fact a modification of the profit of the form; 2) the defendants' recommendations of executives shall be judged in connection with the status of the shareholders; 3) the relationship between the grant of profits and the exercise of the rights of shareholders should be broadly judged; 4) the agreement between the shareholders and the company that conflicts with the principle of equality of stock or the principles of institutional structure is invalid; 5) the recommendation of an officer is invalid as it violates the principle of equality of stock, infringes the right of the officers of the general meeting of shareholders, and should be regarded as null and void.