투자자보호 약정과 주주평등원칙의 관계에 관한 고찰 - 대법원 2023. 7. 13. 선고 2021다293213 판결을 중심으로 -

Abstract

When the company(i.e. issuer) and some of the investors enter into a share purchase agreement, they often enter into the ancillary agreement(hereafter, ‘the investor protection agreement’), which includes certain provisions designed to protect the interest of the investors. The Supreme Court have regarded the agreement which gives only some of the shareholders the superior rights or benefits as invalid according to the principle of the equal treatment of shareholders, if there is no other special reason for the unequal treatment. So it matters whether or not to regard the investor protection agreement as invalid due to the violation of the above principle because it can be thought that it is the agreement which gives only some of the shareholders the superior rights or benefits. Recently, lower courts’ decisions on whether the investor protection agreement is in breach of the principle of the equal treatment of shareholders have been divided. Regarding this issue, the Supreme Court’s ruling in case 2021da293213 on July 13, 2023(hereafter, ‘the ruling’) held that (ⅰ) the agreement which gives only some of the shareholders the superior rights or benefits could be permissible when there is a special reason to justify the unequal treatment. The ruling held that (ⅱ) the decision about whether the unequal treatment could be permissible should be made carefully considering various matters such as the content of the unequal treatment, the necessity of the unequal treatment, consent of the other shareholders and calculating whether the unequal treatment corresponds with the benefit of all the shareholders and the company. The ruling held that (ⅲ) the agreement which grants the consent right to the investor(so called ‘the consent right agreement’) could be permissible when there is a special reason to justify the unequal treatment. And the ruling held that (ⅳ) if the agreement which grants the right to demand compensation for the breach of the investor protection agreement(so called ‘compensation agreement’) can be seen as the agreement which is designed to compensate shareholders for damages and secure the implementation of the duty, compensation agreement is valid, because it is the agreement about liquidated damages. So compensation agreement can not be interpreted as the agreement which guarantees the withdrawal of invested capital unconditionally. Thus it can not be affirmed that such agreement is in breach of the principle of the equal treatment of shareholders. This paper reviewed the propriety of the ruling and it can be said that the ruling is reasonable. Several Supreme Court’s rulings on July 13, 2023 or later reached to different conclusions about whether compensation agreement was in breach of the principle of the equal treatment of shareholders, even though they described the same legal doctrine. The reason was that the courts made different decisions about whether compensation agreement could be interpreted as the agreement which guaranteed the withdrawal of invested capital unconditionally, after examining the substance of compensation agreement. It is necessary to bear in mind that the courts’ decisions about the validity of the investor protection agreement can be different in each individual cases. And it is expected that the scope of application of the principle of the equal treatment of shareholders can be more clarified by the studying of the academic world and the development of court’s rulings.