일본에서의 주주평등원칙에 관한 판단기준논의와 시사점

Abstract

In Japan, the Companies Act of 2005 provides a general rule regarding the principle of equality of shareholders (Article 109(1) of the Companies Act of Japan), which states that unequal treatment of shareholders is not a violation of Article 109(1) of the Companies Act as long as proportional treatment based on the number of shares held is the principle and other treatment is reasonable. However, the specifics of such reasonableness are not clear. In Japan, there have been various discussions about the exceptions to the traditional principle of equality of shareholders, especially since the Companies Act of 2005, which greatly relaxed the regulations of the classified stock system and realized the diversification and flexibility of classified stocks, while raising concerns about abuses of the system, the expectation of the principle of equality of shareholders to prevent such abuses has increased. While the Supreme Court's decision in the Bulldog Source case recognizes that differential treatment under the necessity and substantiality requirements does not violate the principle of shareholder equality even when the purpose of the principle is affected, and most of the Japanese theories affirm that the permissibility of unequal treatment is determined by flexible criteria such as reasonableness, necessity, and substantiality, there is no consensus on the details of the necessity and substantiality requirements and the specifics of the flexible criteria such as reasonableness. Company-shareholder agreements that stipulate the governance of startup companies, such as the right to appoint and remove directors or veto important matters, may violate the principle of shareholder equality because they give certain rights to VCs under the provisions of the Companies Act. While it is undeniable that a company can grant certain shareholders governance rights only to shareholders who have signed a contract with the company, and that a company can favor some shareholders with regard to governance rights, the relationship with the principle of shareholder equality is problematic. The Supreme Court's recent series of judgment standards on the application of the principle of equality of shareholders in Korea is positively evaluated for providing flexible standards for the principle of equality of shareholders, and it is expected that an in-depth review of the consideration factors and judgment standards for the treatment of inequality among shareholders will follow in the future.