종류주식활용에 따른 주주평등원칙의 재조명

Abstract

‘Principle of shareholder equality’ implies that the company treats all shareholders equally under the same circumstances without an arbitrary discrimination. However, a feasibility issue is raised about acceptance across all areas of corporation law by premising ‘the equal treatment’ as the highest principle though there is no the statutory form for the Commercial Code.　Korea induced a variety of class shares accompanied by the amended commercial code (Act No.10600) in 2011. The conventional position which regard ‘Principle of shareholder equality’ as a mandatory provision might draw a conclusion that class share goes against the principle. Discussion upon the use of class shares as a defensive measures against hostile Mergers and Acquisitions(M&A) is dissimilar in the type of share. Treating the shareholders differently does not contradict ‘Principle of shareholder equality’ because it does not impose any burden except voting restriction on the hostile vendee. Other perspective also insists the principle is proper with the regard of less impact on the common shareholders. Although the type of share does not run counter to the principle, but there is still room for further review as the possibility of violation in treatment on the shareholders might exist in terms of concrete operations. Needless to say, even if the rationality is conceded as an exception to the principle, we need to be careful as impossible as the chance to make frame of the principle is excluded. Meanwhile, a stock company　is undoubtedly in charge of playing an important role in the modern society. Shareholders of the corporation regard ‘Principle of shareholder equality’ as one of the central axis penetrated through the entire corporation law among various legal relations. According to our business law, this principle can be recognized as the general principle of company law as its individual regulations are remaining despite nonexistence of ordinary provisions, In addition, the current company atmosphere focuses on the activation and efficiency of the market for corporate management and the improvement of corporate value. Review on the class share and the principle is necessary yet. The class share can be expected as the defense against hostile M&A and the discriminatory treatment to the corporate buyers may occur as a problem. With the need to reconsider the principle in accordance with the use of class share, this study will suggest the appropriate standards and legal policy directions when it comes to applying the principle to the further financial structure in Korean companies.