영국 회사법상 주주를 위한 법적 구제수단으로서의 불공정한 침해(unfair prejudice) 법리에 관한 연구

초록

In contrast to the UK company law which adopts the doctrine of unfair prejudice, there is no general provision under Korean corporate law by virtue of which minority shareholders can challenge oppressively or unfairly prejudicial conduct by a controlling shareholder. Under Korean corporate law, even minority shareholders who are oppressed by a controlling shareholder are strictly prohibited from exercising exit rights by requiring the controlling shareholder or the company to buy the shares except in the case where they are allowed to invoke appraisal rights. If the minority shareholders invested in a listed company, they could withdraw their invested capital and exit from the company by selling their shares on the public market. Though, minority shareholders in an unlisted company cannot resort to such a mechanism because the shares in an unlisted company are not freely traded on the public market. In this scenario, they are helplessly exposed to extortion or exploitation by the controlling shareholder. The unfairly-prejudiced shareholders might consider filing a wind-up petition for the unfairly prejudicial conduct as the last resort. However, since the test for the wind-up is stringent and the threshold is too high, the measure would be futile in most cases. Given these, minority shareholders can be said to be vulnerable to unfairly prejudicial or oppressive conduct by a controlling shareholder under Korean corporate law. In this respect, there is urgent need to enact the mechanisms through which the minority shareholders in unlisted companies can seek court-issued remedies against the unfairly-prejudicial conduct by the controlling shareholder. For this purpose, the doctrine of unfair prejudice in the U.K. would provide useful information and precedents.

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