株式平等의 원칙의 公理性

다국어 초록 (Multilingual Abstract)

In Korean commercial law, the equal treatment of shareholders rule has been regarded as one of the fundamental principles of corporate law, from the era of the old Commercial Law under Japanese occupation to the present. It has been recognized not only as a guiding principle for legislation and interpretation but also as a practical legal principle with mandatory effect in specific cases. However, since the 2000s, there has been a growing argument, primarily in the context of joint-venture contracts, that discrimination among shareholders benefiting the company and its shareholders should be permitted (the relaxation theory). To justify this, some argue that the equal treatment of shareholders rule lacks an explicit legal basis and that it is a policy-driven doctrine aimed at protecting minority shareholders, which can be disregarded if it does not conflict with shareholder interests.<BR/> Until recently, Korean court precedents, consistent with the established majority view, regarded the equal treatment of shareholders rule as an unassailable supreme principle, invalidating any provisions in articles of incorporation, resolutions of corporate organizations, or agreements that contravened it. However, in 2023, the Supreme Court adopted the relaxation theory in its rulings. The Supreme Court issued four decisions concerning the equal treatment of shareholders, almost simultaneously, embracing the relaxation theory in general terms but arriving at divergent conclusions in specific cases depending on its application.<BR/> This article supports the traditional majority view, defending the status of the equal treatment of shareholders rule based on its historical development and the fundamental theory of the corporate system. It also critiques the Supreme Court’s 2023 rulings, highlighting inefficiencies in the general theories and unreasonableness in their application to specific cases.<BR/> The equal treatment of shareholders originated in 19th-century Germany as a natural and self-evident doctrine of corporate law, even in the absence of explicit statutory provisions. This theory was later adopted into Japanese commercial law through academic interpretation following Japan’s enactment of its Commercial Code in 1899, modeled on German law, despite the absence of explicit statutory provisions. It subsequently influenced the interpretation of Korea’s old and new Commercial Codes. While Japan and Germany codified the equal treatment of shareholders rule in 1978 and 2005, respectively, there is no disagreement that the substance of the principle remained unchanged before and after codification. Considering this developmental trajectory, the equal treatment of shareholders rule is emphasized as the supreme principle of corporate law, irrespective of statutory provisions and independent of its policy objective of protecting minority shareholders.<BR/> Furthermore, this article argues that the equal treatment of shareholders rule is an axiomatic legal principle that necessarily exists as long as the corporate system is based on limited liability, grounded in notions of justice and equity.<BR/>