상법상 권고적 주주제안의 도입 쟁점

다국어 초록 (Multilingual Abstract)

The escalating prominence of environmental, social, and governance (ESG) considerations portends a surge in the utilization of advisory shareholder proposals. However, the compatibility of such mechanisms within the existing framework of the Korean Commercial Act (KCA) remains a critical point of inquiry. This article undertakes a rigorous examination of the current landscape of shareholder proposals in Korea, juxtaposing it with regulatory trends and salient ESG-related instances of advisory shareholder proposals in the United States and Japan. This comparative analysis yields crucial implications for the potential introduction of advisory shareholder proposals under the KCA.<BR/> Firstly, under prevailing interpretations of the KCA, the permissibility of advisory shareholder proposals appears tenuous. The Act confines the purview of shareholder meetings to matters explicitly delineated within the Act itself and the company’s articles of incorporation. Consequently, resolutions concerning extraneous matters are, in principle, deemed invalid.<BR/> Secondly, the KCA lacks explicit provisions for the recognition of non-binding “advisory resolutions” emanating from shareholder meetings. This lacuna is further compounded by the absence of established precedent or recognized case law supporting such resolutions. The current legal architecture of the KCA thus appears ill-equipped to accommodate non-binding advisory shareholder proposals culminating in merely declarative resolutions.<BR/> Thirdly, the introduction of advisory shareholder proposals carries the inherent risk of abuse. In jurisdictions where such proposals have been implemented, companies opposing them have frequently voiced concerns regarding the potential for misuse of shareholder proposal rights. While the United States recognizes advisory shareholder proposals, their effect is explicitly non-binding. Critically, U.S. regulations incorporate an extensive array of grounds upon which companies can justifiably refuse such proposals, mitigating the risk of abuse. In stark contrast, the KCA enumerates only a limited set of statutory grounds for refusal, leaving the crucial issue of abuse largely to judicial interpretation.<BR/> Fourthly, even if an advisory shareholder proposal were to receive shareholder approval, the capacity of the company to treat it solely as an advisory measure remains uncertain. For instance, the approval of a shareholder proposal pertaining to environmental or social concerns, followed by subsequent non-implementation by the company, could engender significant ramifications for the disclosure obligations of listed companies, imposing substantial burdens.<BR/> Finally, integrating advisory shareholder proposals into the KCA would inevitably entail increased corporate costs. Concurrent with the expanding disclosure requirements for ESG factors applicable to listed companies, the formalization of ESG indicators through advisory shareholder proposals could introduce additional layers of regulatory complexity. This, in turn, could precipitate heightened costs for companies endeavoring to navigate, or potentially circumvent, these regulatory demands.