위임장권유제도의 재고찰―본질에 대한 재고와 개선과제―

Abstract

The 2013 amendment to the Financial Services and Capital Market Act of Korea (“Capital Market Act”) that abolished the ‘shadow voting’ based on Article 314(5) finally became effective from 2018. As a result, the utilization of proxy solicitation by issuing companies in order for them to collect voting rights, has been increasing since then. Although proxy solicitation theoretically originates from the law of agency, solicitors in most cases merely deliver the shareholders’ votes to the shareholders meeting. Consequently, it is possible to view the proxy solicitation as an alternative voting method. One of the frequently-addressed issues regarding the proxy solicitation is on the scope of the solicited shareholders. It is true that current set of proxy rules seems to allow the solicitor to freely choose the shareholders to grant the proxies. However, it is mandatory to solicit all shareholders in case where the solicitor is the management in the USA or the UK. Therefore, it is necessary to amend our proxy rules to provide that soliciting management mandatorily solicit all the shareholders. Article 152-2 of the Capital Market Act that reinfirces shareholders’ rights to solicitations also need to be legally reviewed and amended with reference to the US Rule 14a-7 that the Article benchmarked. Current electronic proxy solicitation system(“E-Proxy”) also bears some legal problems. Korea implemented the E-Proxy by benchmarking US E-Proxy model based on the US Rule 14a-16. However, Article 160 of the Enforcement Decree of the Capital Market Act that is the legal basis of the ‘Korean-type E-Proxy’ does not specify the whole process of electronic proxy solicitation. This legal and practical uncertainty caused by the unspecific rule should be removed by ameding the rule. Some practical issues related to conducting proxy solicitation also need to be examined. Above all, market practices often deviated from the regulatory settings on proxy solicitation. One common error is when solicitors fail to abide by solicitation regulation even if their actions fall within ‘solicitation’. This market practice often imperils sharholders’ opportunity for ‘informed proxy’. The practice of open-ended solicitation that our proxy law does not allow also need to be corrected. It is also necessary to eliminate the practice of solicitation without proxy statements or with the statements that do not meet legal requirements.