사전투표에 의한 주주의 의결권행사 - 필요성, 가능성, 규율의 법리를 중심으로 -

Abstract

Early voting, which is different from the absentee ballots like written voting and electronic voting, is a way to exercise voting rights on a regular polling place within certain period of time prior to the ordinary day of shareholders’ meeting. Early voting in the resolution of the shareholders' meeting is not stipulated in the Commercial Code. In this paper, the author examines the legal issues relating to early voting in order to seek new ways to enable the expansion of the participation and ease of the shareholders to the meeting. Key topics covered are the necessity, possibility, reasoning, and requirements to be equipped to conduct early voting lawfully. Ⅰ. What are the advantages and disadvantages of early voting in practical and economic terms? The advantages of early voting may be presented such as (ⅰ) enhancing the shareholders’ voting convenience, (ⅱ) avoiding the frustration of general shareholders’ meeting by facilitating the quorum requirement, and (ⅲ) being utilized as voting methods familiar to an analogue way in comparison with voting in writing and the electronic voting, and so on. On the other hand, the disadvantages of early voting may be mentioned: (ⅰ) It is likely to distort the results of the shareholders' meeting resolution due to the prolonged voting time; (ⅱ) to limit the voting place physically because it is not an absentee ballot; and (ⅲ) to increase the cost of administration. The author concludes that its advantages may outweigh the disadvantages, depending on the circumstances of the companies such as configuration and location of shareholders, etc. Ⅱ. If the early voting might be allowed under the current Commercial Code, what are the underlying judicial basis? Assuming that early voting is necessary and possible in the resolution of the shareholders' meeting of certain corporations, this paper presents the legal basis for early voting as follows: (a) the spirit of shareholder democracy and political rights of the shareholders which Commercial Code aims to substantially ensure in corporate governance - that is, if members who do not attend a meeting are to be bound by the meeting’s decisions, all members must be given a reasonable opportunity of the attending the meeting(engagement policy); and (b) the corporate autonomy in the matters concerning the voting methods. A shareholders’ face-to-face meeting and a debate gathered in the same place are not necessarily required in the shareholders’ meeting. Ⅲ. What requirements early voting should have in order to be duly carried out? The early voting should meet the following requirements in order to be accepted as legitimate: (a) Early voting should be prescribed in the constitution of the corporation as a basis for its adoption; (b) The board of directors may determine whether to perform early voting in its discretion; (c) The contents of the agenda should be suitable for the early voting, without the need for meeting and discussion; (d) As for the shareholder who can do the early voting, it should be put to open without special restrictions – that is, all shareholders entitled to vote must have the opportunity to do the early voting; (e) Any reasons to justify the prior vote are not required; (f) In taking the convocation procedure of shareholder’s meeting, the details regarding the early voting should be fully noticed to the shareholders; (g) The ordinary shareholders' meeting should be held with the early voting, that is to say a combined system.