한･일 양국의 회사법상 주주 의결권의 제한에 관한 비교검토

Abstract

The paper examined the purpose and content of the legislation regarding the restriction of shareholder voting rights under the Korean Commercial Act and the Japanese Companies Act, and examined the background and characteristics of their different developments by comparing the systems of both countries. The Korean Commercial Act and the Japanese Companies Act stipulate the one share - one vote principle in relation to the resolution of the shareholders’ meeting of the stock company. However, the laws of both countries provide that the one share - one vote principle can be restricted or eliminated by the provisions of the law. The restrictions of shareholders' voting rights in Korea and Japan were generally similar until 1981, except for restrictions on shareholder voting rights when electing auditors under the Korean Commercial Act. Both countries have recognized the exceptions to the one share - one vote principle, including the company's own shares and cross-held shares, and shares held by parties who have special interest in the resolution of the shareholders’ meeting. This exception was to restrict one share - one vote, as the interests of minority shareholders were infringed by the majority vote or the fairness of the resolution was likely to be undermined by the exercise of voting rights. The restriction of voting rights of major shareholders when electing auditors or audit committee members under the Korean Commercial Act is to limit the influence of major shareholders and ensure neutrality and independence of auditors or audit committee members. In addition, the Korean Commercial Act has a limit on exercising voting rights up to 3% of the total number of issued shares when a large listed company excludes the cumulative voting system by its article of incorporation or changes the excluded articles of incorporation. However, in Japan, there is no restriction on voting rights of major shareholders when electing auditors or audit committee members, and there is no restriction on voting rights of major shareholders in the case of a change in the articles of incorporation to eliminate the cumulative voting rights. In Japan, the provisions prohibiting the exercise of voting rights of special interested parties were deleted in 1981 because the concept of special interests was unclear in applying the restriction of voting rights. In addition, if a resolution was made significantly unfair as a result of the exercise of a voting right by a shareholder with a special interest, the resolution would be the cause of the revocation. However, the Korean Commercial Act keeps the provisions regarding restrictions on voting rights of special interested parties. In the early 2000s, Japan allowed shares with restricted voting rights, shares with veto rights, and class shares related to the election and dismissal of directors and auditors, and introduced a unit share system. Korea also allowed different classes of shares having no, or limited voting rights in the revision of its Commercial Act in 2011, but did not introduce the class shares with veto rights, and class shares for the election and dismissal of directors and auditors, and the unit share system. Under Japanese Companies Act, the unit shares system was originally introduced to reduce the costs of managing shareholders, but if the number of one unit of shares differs significantly from one share to another, it would have the same effect as recognizing multiple voting rights. Thus, since the early 2000s, the two countries have also seen considerable differences in restrictions on shareholder voting rights through revisions to the Commercial Act and the Companies Act. Finally, to summarize the characteristics of restrictions on shareholder voting rights in both Korea and Japan, the Korean Commercial Act focuses on preventing distortions in corporate control, ensuring fairness in resolution at shareholders’ meetings and protecting the interests of minority shareholders. In contrast, it can be understood that the Japanese Companies Act emphasizes facilitating smooth financing, stabilizing the control relations, as well as using it as a hostile M&A defenses and in corporate restructuring through diversification of class shares.