이사회 권한을 제한하는 주주의 비토권 - 대법원 2023. 7. 13. 선고 2021다293213 판결 -

Abstract

Our current Supreme Court has held that 1) veto right of shareholders which restricts the BOD authority violates the principle of a shareholder equal treatment(herein referred to as “equal treatment”) but it might be regarded as reasonable discrimination considering circumstances of a company, articles of the company Act, disadvantage of other shareholders etc and in such a case, such shareholders is viewed as to contribute to the company by monitoring management, ii) indemnity agreement is to make up for the default of the company so it is valid and effective in principle not violating the equal treatment. Of course, such a veto right is for some ‘specific’ shareholders not for all so it inevitably raises issues of equal treatment. However, the rule-if the company treats some shareholders differently from the others, it is vold and null-is too simple to encompass complicated and various issues in the veto right. In this paper, I would like to focus on the issue whether such shareholders could restrict the authority of the BOD. In arguing that I has pointed that such authority is not the kind of power that shareholders with the right to appoint the director or the company could concede. The minority shareholder vested with such veto right might make a decision against interests of the others and the company pursuing their own interests. The fiduciary duty is not owed to them at all. We also keep in mind that this right raises an issue entrance of, performance and non-performance of the agreement in connection with such fiduciary duty. The scope of veto is too huge comparing that of the U.S.. I have accented that such veto right is to be interpreted as monitoring right of management by giving them a chance to reconsider where its decision is for the general shareholders and the company, not as the right to refuse and frustrate its decision. This interpretation is able to prevent consumptive and useless argument by making such right function as right protected in injunction on new issuance of shares. This restrictive interpretation purports to the current Supreme Court case holding. It also views the veto right as valid and effect so that the indemnity provision is valid and effect as well. Meanwhile, indemnity provision is to make up the damages of shareholders so it should not infringe the rights of creditors. Keeping this point in mind, I have analyzed what shareholders could take form the company just like the creditor. I believe that the portion reflecting the investor’s trust that such veto right could cover the risk inherited in the investment is direct damages. On issuance of new shares in violation of the veto agreement, the portion of share value diluted is also direct damages. Such loss in economic value of shares(due to shrink in paid in capital) is irrelevant to the damages of the corporation. Such company’s damages are not the cause of the shareholders’ damages. Thus, recovery of damages by the corporation can not restore ones of the shares, which means that such damages are indirect. Up until now, stances of parties of the veto agreement thereto are not desirable. Investors insecure require too much to the company and the company with desperate needs of money accepts their demanding requirement without prudent consideration. After entering the agreement, the company goes through the corporate affairs without consent and investors argues it. Courts’ holding has been inconsistent so uncertainty has been surrounding such veto right. The current Supreme Court case has held that there is exception to the shareholder equal treatment rule. However, I believe the standard of such exception is too huge with some left not analyzed at all. Clear and detailed standard is requires so that such veto right could protect the company, shareholders and creditors and finally revitalize the capital market.