Earticle

전자투표제도의 의무화, 즉 원하는 주주에게 회사는 반드시 전자투표를 할 기회를 제공하도록하는 개정안은 현재 선택제인 서면투표제도와 위임장권유제도를 그대로 둔 상태에서 주주총회에참석할 수 없는 주주에게 의결권을 행사할 수 있는 기회를 주는 방안으로서는 최선의 입법이라고생각한다. 전자투표제도 마저 현재와 같이 선택제로 그대로 두면 주주총회에 참석할 수 없는 주주의 입장에서는 의결권을 행사할 수 있는 기회란 오로지 회사가 재량을 베풀 때에만 얻을 수있게 되기 때문이다. 그러나 향후 주주총회에 출석하지 못하는 주주의 의결권행사방법과 관련하여 글로벌 스탠다드라는 관점에서 의결권행사제도를 개정한다면, 그 때에는 미국이나 일본처럼서면투표제도를 의무화하고 모든 주주를 대상으로 위임장권유를 강제함으로써 주주가 의사만 있으면 언제든지 의결권을 행사할 수 있도록 하고, 전자적 방법(전자투표제도)으로 그 기회를 추가로제공할 지는 이사회가 내부사정 등을 고려하여 결정하도록 하는 것도 검토해 볼 수 있을 것이다

In accordance with the 2009 amendment of the Commercial Act, shareholders may exercise the voting right electronically without being physically present at the shareholder meeting (Article 368-4,Section 1, Commercial Act), so called the “Electronic Voting System”. Although it has been 4 years since the enforcement of the system, few companies have adopted it. One of reasons being is that the adoption of the electronic voting system is not required under the law but only depends on the discretion of the board of directors. As such, the amendment of the Commercial Act has been promulgated to make the electronic voting system mandatory. According to the amendment, a listed company having more than certain number of shareholders shall allow its shareholders to exercise their voting right through an electronic method without being physically present at the shareholder meeting (Article 542-14, Commercial Act). Therefore, such listed company shall permit electronic voting if shareholders desire such. This is in a contrast to the past that shareholders were not allowed to vote electronically without a relevant resolution of the board of directors, even when shareholders have desired such. There are many critics against the mandatory electronic voting system. However, the mandatory electronic voting system is the best legislation to provide an opportunity to shareholders, who cannot be physically present at the shareholder meeting, to exercise their voting rights, especially considering that the adoption of voting in writing and proxy system still depend on the discretion of the board of directors. Unless the current electronic voting system is not amended, shareholders who cannot be physically present will be able to exercise their voting right only when the board of directors decides.

For a long time, a Board of Directors(the “BOD”) has been the center of the corporate management. However, since the Sup-prime Mortgage Crisis and prior economic crises, such directors supremacy has been criticized. Shareholder activism and its supremacy have been on the rise. I believe we have to keep in mind one point in reviewing this dispute. The important thing is to check the BOD so as to create the corporate value. Not to provide the shareholder with more powers itself. In strengthening the shareholder power, there are two ways. One is substantial endowment of a right. The other is enhancing the disclosure obligation of a corporation to the shareholder. Taking the first way, we have to be very careful because corporation involves various parties and related parties and very complicated mechanism works. In this paper, I suggest to take more reinforced disclosure system especially in the Proxy Solicitation. In the United States, the Dood Frank Act and SEC Rules have tried a lot of methods to check the BOD. SEC has been strengthening the Proxy Rules and Regulations. Recently, SEC provided the shareholder with the Proxy Access under its new rules. However, the court invalidated the new rule. I would like to introduce this movement and propose certain implication. It is generally believed that the shareholder should exercise its voting right in an appropriate way to improve the corporate governance and we should operate the shareholders’ meeting as a place for disclosing the information to shareholders. In this context, I suggest to impose more tight disclosure obligation on the corporation in a Proxy Solicitation. It means that a Proxy Statement must reflect more information which is material to the shareholders in exercising their voting rights. Especially I propose to link the annual report to such disclosure obligation. Trust is not only important in the family or friend relationships. In financial market, it is also very important. With such trust, the investors are willing to participate in the market and the market would prosper. Discloure system protect the shareholder's right in a substantial way. It also provides the corporation with indemnification. At the same time, it means the regulatory method to secure efficiency and fairness in the financial market. What kinds of information must be disclosed and who must stand the expenses should be open to the further discussion.