주식평등의 원칙에 관한 최근 논의의 비판적 검토-대법원 판례의 평석을 중심으로-

Abstract

The principle of shareholder equality, which requires that shareholders be treated equally by the company, is the highest principle of peremptory norms applicable to all legal relationships between companies and shareholders, and functions to protect minority shareholders’ interests from abuse of shareholders’ property rights and majority rule. Accordingly, any provisions of the articles of incorporation that violate this, resolutions of general shareholders’ meetings and boards of directors, or agreements granting superior rights or benefits to some shareholders that are not recognized to other shareholders are all invalid. However, recently, there has been four Supreme Court Decisions that states that such agreements can be permitted if there are special circumstances that justify differential treatment, and there is a conflict of opinions for and against. In this paper, after examining the issues raised in four Supreme Court Decisions, the following interpretation theory is presented. Namely, 1) The principle of equality of shares is more suitable for the nature of a corporations than the principle of shareholder equality, so the latter should be expressed in the future unless there are special cases. 2) The principle of equality of shares should be relaxed or interpreted flexibly, and the side effects resulting from the formal operation of the principle should be resolved by supplementing or newly establishing other systems or regulations. 3) In order to prevent disputes related to allowing differential treatment of the principle of equality of shares and to seek a reasonable resolution, the suitability of the criteria for judgment should be reviewed first and reasonably adjusted. 4) Before determining whether to allow differential treatment of the principle of equality of shares, it should first be reviewed whether the board of directors can enter into such an agreement with investors. 5) The issue of return of capital should be analyzed and evaluated from a different perspective from the differential treatment of the principle of equality of shares.