주주평등의 원칙에 관한 대법원 판결 검토

Abstract

The principle of shareholder equality is not stipulated in the Commercial Act, but has been recognized in accordance with precedents and conventional wisdom. Criticism has long been raised for a flexible interpretation of precedents in terms of formal equality, and four important rulings were sentenced between July 13 and July 27, 2023 to ease and apply the existing rigid position. Previously, exceptions to the principle of shareholder equality were strictly limited to cases with laws such as the Commercial Act, but this ruling is meaningful in that it presents specific criteria for exceptions to the principle of shareholder equality in terms of justice and equity by giving superior rights or profits to some shareholders in consideration of all circumstances. The series of rulings sentenced in July 2023 are the same in that they recognize exceptions to the principle of shareholder equality with special circumstances in terms of penalties for profits considering all circumstances, but the four rulings differ in terms of specific application. The Supreme Courtʼs ruling on July 13, 2023, 2021Da293213 and the Supreme Courtʼs ruling on July 13, 2023, 2023Da210670 recognized exceptions to the principle of shareholder equality in relation to the agreement on the right to prior consent and the agreement on the right to request explanation when deciding to commence rehabilitation. Still, the precedent is strictly interpreted even if the proportional principle is applied to the agreement that can actually recover the investment principal, even if it is an investment recovery agreement, a loss compensation agreement, or a damage compensation agreement. These rulings have made it possible to flexibly apply the principle of shareholder equality from the perspective of practical equality rather than formal equality, but interpreting the exception to the principle of shareholder equality from an overly flexible perspective could lead to various side effects, such as violating the nature of the principle of capital loyalty and neglecting the protection of creditors.