2009 회사법 판례상의 주요쟁점

Abstract

Belows are the summary and the arrangement of the cases that are worth to be reviewed (1) The cross ownership of shares. If certain corporate owns over 10% of the other corporate, the shares of the cross owned corporate have not right to vote in shareholder meetings to the other corporate. In counting the shares, it does not matter wether it has been changed the name in shareholder's list. (2) Shareholder‘s voting rights are the most important device to monitor management. But it is very troublesome for shareholder to vote by himself at shareholder meeting. In that case it can insure the shareholder’s voting right if they can delegate that right to somebody else. Proxy voting can be rejected by the chairman of shareholder meeting. The chairman of shareholder meeting has the right to regulate the shareholder meeting. By that right he can drive out the proxy if he disorder the shareholder meeting. The corporation adopts sometimes bylaw that it can in some aspects restrict proxy voting right. For example, They need additional document like a certificate of a seal impression beside proxy. And they sometimes restrict qualification of proxy by shareholder of the corporation. Can it be valid or void. Considering that it should be pointed that proxy voting has the role to ensure the shareholders voting right. If it restricts qualification of proxy by shareholder of the corporation, in case that the shareholders have no acquaintance of shareholder to delegate their voting right, they should give up their voting right or delegate that right to management. So the bylaw like that should be counted invalid. (3) Restrict of shares to votes in electing the auditor. The shares of over 3% that owned by the largest number shareholder could not be practiced the voting right in electing the auditor. If the listed corporate regulate at the charter the shares of over 3% could not be practiced even though they are not largest number shareholder, it breach the security law and it is invalid. (4) If the corporate neglect correcting the wrong in the registration, it has in charge of the legal responsibility from that. In that case, if they have severe negligence in correcting the wrong, even though they did not know the wrong, they are responsible for that. (5) The external chief director has legal basis by the estoppel by representation. Even if he is not the director, the corporate can be responsible for the deed by him on account of the external chief director. (6) New issuance to the third party just can be executed when it is regulated in chart. The new issuing shares to the third party are permitted when it's purpose is to induce new technique or improve the financial situation. When it is issued for the purpose of defending management, it can be void and subject to the sue of voiding new issuance. (7) The convertible bond can be issued to the third party just when it is regulated in chart or approved in shareholder meeting by agreement over 2/3 of shareholder. When shareholder waived their right to receive the convertible bonds, the corporate can not issue them to the third party in the same condition. But the supreme court admit the same condition to the third party as to the shareholder.