株主議決權制限의 違憲性 硏究
Study on Unconstitutionaity of Shareholders' Limited Voting Rights
최준선, 이병규
초록
For a corporation, the voting rights of shareholders refer to shareholders' rights to participate in shareholders' meeting to contribute to the decision-making process. Voting rights are basic rights to participate in the management to secure their status as property right holders. Shareholders' voting rights are guaranteed by the Constitution as a part of property rights and must be guaranteed under any circumstances. In certain cases, however, these rights are restricted. Because shareholders with multiple voting rights are highly likely to abuse their authority as dominating shareholders, they could violate the benefits of minor shareholders. The Business Law of Korea currently limits the voting rights of shareholders in certain cases where the law of one voting right per share is not applied. Generally, limiting the voting rights is unconstitutional when the purpose of legislation is clearly against the needs of the public or when the measure of limitation violates the needs or rationality of the purpose of limitation. When applied to limiting the voting rights of shareholder, this means that it is unlawful to limit the voting rights of shareholders solely because they possess more than a certain ratio of shares and unreasonable restriction of voting rights could violate the property rights of shareholders that are guaranteed by the Constitution. This study examined the constitutional validity of limiting the voting rights of co-owned shares, special interested parties, and in case of exclusion from concentrated vote system by discussing relevant issues and arguments. Also, it suggested amendments to improve the current voting right system to conclude that voting rights shall be limited at the minimum or complimented by post-limitation measures as the current system is unconstitutional.