주주평등원칙의 예외와 판단기준에 대한 고찰 = A Study on the Exception of the Principle of Shareholder Equality and the Criteria for Judgment

다국어 초록 (Multilingual Abstract)

This paper focused on related precedents to examine the criteria for judging exceptions to the principle of shareholder equality. Three cases were examined, two of which recognized exceptions to the principle of shareholder equality, that is, special circumstances that can justify differential treatment. After presenting the same criteria for judging special circumstances in both cases, the judgment basis was applied according to the content of each case to determine whether differential treatment can be recognized as special circumstances that can be justified.
The first case in this paper is an exception to the principle of shareholder equality. If the company signs a new stock acquisition contract for financing and agrees to obtain prior consent for the company’s decision-making, the agreement means that the company treats shareholders differentially by granting superior rights to only some shareholders. However, the share acquisition price paid by shareholders was a necessary fund for the company’s survival and development, and it was inevitable to give the shareholders the right to consent to the company’s decision-making to attract investment. Even if such consent was granted, other shareholders would not suffer any real or direct damage or disadvantage, but if there were special circumstances that could justify differential treatment by providing some shareholders with an opportunity to monitor the company’s management activities, which would benefit other shareholders and the company.
If the second case also recognizes an exception to the principle of shareholder equality and promises to compensate the company for the full amount of money paid for the stock acquisition with the person who becomes a shareholder, it is invalid in violation of the principle of shareholder equality by absolutely guaranteeing the recovery of invested capital only for the relevant shareholder. If differential treatment under the consent agreement concluded between the company and the shareholders is exceptionally permitted, an agreement was signed together to pay money in the name of compensation for damages caused by violations of the consent agreement. If the agreement can be considered to be to secure the fulfillment of the obligation by compensating or transferring damages suffered by shareholders in violation of the obligation to obtain prior consent, it is valid unless special circumstances exist and does not conclude that it violates the principle of shareholder equality by absolutely guaranteeing the recovery of the invested capital for some shareholders.