주주평등의 원칙의 법리 재검토 -최근 판례를 중심으로-

Abstract

The principle of shareholder equality is that all shareholders are treated equally in terms of their rights and obligations according to the number of shares they own. The fundamental purpose of the principle of shareholder equality is to protect minority shareholders from the strengthening of controlling shareholders’ control and abuse of authority, but formally treating shareholders equally according to the number of shares they own may actually protect controlling shareholders and infringe upon the interests of minority shareholders. Therefore, it is reasonable to understand the principle of shareholder equality from the concept of formal equality according to the number of shares to the concept of substantive equality that protects the interests of all shareholders and the company. Therefore, if discriminatory treatment of a specific shareholder helps increase the company’s capital, does not infringe on the voting rights of other shareholders, and is not detrimental to other shareholders, there is no need to invalidate it for violating the principle of shareholder equality. In this regard, our Supreme Court recently ruled that the following should be taken into consideration as reasonable justifications for allowing discriminatory treatment that grants preferential rights or benefits to certain shareholders: the content, circumstances and purpose of the discriminatory treatment; whether it violates mandatory laws and regulations; whether the voting rights of other shareholders are violated; the degree and content of the disadvantages suffered by other shareholders due to the differential treatment; the consent rate of shareholders who will suffer the disadvantages; and the company’s listing, governance structure, and business status. Therefore, in cases where a specific act violates existing legal provisions, individual legal provisions should be given priority in providing relief, and the principle of shareholder equality should be supplementarily applied only in cases where relief by individual legal provisions is impossible.