A corporation's board of directors has the power to call a shareholders' meeting and set its agenda, even if the agenda includes issues that can be decided at shareholders' meetings according to the Korean Commercial Code ("KCC") or the corporation's ...
A corporation's board of directors has the power to call a shareholders' meeting and set its agenda, even if the agenda includes issues that can be decided at shareholders' meetings according to the Korean Commercial Code ("KCC") or the corporation's articles of association. KCC Article 363(2) gives shareholders the right to propose issues to be voted on at the corporation's annual meeting. However, it is unclear whether shareholders have proposal rights for all issues that they can vote on at shareholders' meetings.
Only recently have shareholders started exercising their proposal rights increasingly frequently. In the past, shareholders would typically only propose votes on the payment of dividends and the appointment of directors. However, in 2022, HDC Hyundai Development Company's annual general meeting was marked by a controversial shareholder proposal to amend its articles of association to give shareholders precatory proposal rights about ESG-related issues. Then in 2023, activist shareholders in several other corporations unexpectedly exercised their shareholder proposal right to bring votes about acquiring treasury shares and executing split-offs.
This article includes a comparative analysis of US and South Korean shareholder proposal rights, concluding that shareholder proposal rights should be divided into binding and precatory rights. To make this distinction, this article divides shareholder decision rights, which are exercised at shareholder meetings, into initiative and veto rights. Although the KCC stipulates that certain issues, such as acquiring treasury shares and executing split-offs, should be decided at shareholders' meetings, shareholders do not have full initiative rights because the board of directors must comply with other regulations. Therefore, binding shareholder proposal rights should be limited to proposing the appointment of directors and issues that can directly affect shareholders' interests. This article argues, in terms of the allocation of decision-making powers between the shareholders' meeting and the board of directors, that shareholders should only have veto rights and limited initiative rights related to fundamental corporate issues and should only be able to exercise precatory proposal rights. Lastly, this article recommends that shareholder proposal rights for ESG-related shareholder issues should be precatory because they can serve as another communication channel between shareholders and the board of directors.