소수주주보호제도에 관한 연구: 중국법의 개선방안을 중심으로

Abstract

With the development of society, there appears the phenomenon of the larger scale of corporation, the further decentralization of shares, the separation of ownership and management, the tendency of weaker corporation controlling requirement, and the formalization of assembly of shareholders. Additionally, because of the change of center from assembly of shareholders to board of directors, it is necessary to strengthen the supervising power of assembly of shareholders to protect the rights of minority shareholders. For this purpose, in corporation laws of many nations there are regulations of special protection of minority shareholders. But, in cases of misuse of regulations of protection of minority shareholders, other shareholders' rights may be damaged, so it is necessary to check this kind of misuse and at the same time to reasonably protect the rights of minority shareholders. The scope of study of this essay is the regulations of protection of minority shareholders in the present Korean Commercial Code, Korean Law of Securities Transactions, Chinese Corporations Law and other decrees.

To achieve the above study goal, through the study and comparison of basic theories of minority shareholders' rights, with the relevant regulations of Korean Commercial Code as center and at the same time taking consideration of the legislations of the protection of minority shareholders in the corporation laws of USA, UK, Japan, Taiwan district, I suggest the reasonable legislative programs for the specific regime of protection of minority shareholders.

The specific contents of this essay are as follows:Chapter one is the introduction which explains the goal, scope and method of the study.

Chapter two is the general description of the regime of protection of minority shareholders. In this chapter, starting from the concept of minority shareholders' rights, I explain the limitation of theoretical basis of original rights theory and decision-by-majority theory, comment on the phenomenon of separation of ownership and management, the tendency of weaker corporation controlling requirement, and the formalization of assembly of shareholders existing in modern corporations, and argue the necessity of regime of protection of minority shareholders by explaining the importance of protection of minority shareholders.

Chapter three describes individually the rights in the present regime of protection of minority shareholders. Firstly, I raise and comment on the existing issues through explaining the contents of Korean Law and through comparing the relevant legislations of many nations. These issues are mainly the followings: the issue of access to information of corporation which concerns the right of reading and copying financial records and board of directors meeting records, the right of reading the accountant books, the right of electing the inspector

the issue of protection of minority shareholders in the reorganization of corporation which concerns the protection of minority shareholders in cases of merger and separation of corporation, and the important rights such as shareholder's cash-out right, the right of petition to starting the corporate reorganization, and the right of petition of corporate dissolution judgment of law court.

Chapter four firstly explains the shareholders' right of petition of explanation and the loyalty obligation of controlling shareholders when discussing the Korean legislation concerning minority shareholders' protection regime, then, in discussing the present Chinese legal regime of protection of minority shareholders, reviews the right of access to information, the right of petition of holding provisional assembly of shareholders, shareholders' proposal raising right, accumulate voting regime, the agency of right of resolution, outside auditor regime, outside directors regime, the cash-out right of the shareholders who oppose the corporation merger and the remedies to defects of resolutions of assembly of shareholders, and then raises the problem issues and suggests improving programs. Additionally, as for regimes which do not exist in present Chinese law, such as right of dismissing directors, right of petition of stay of illegal acts, shareholders' representative litigations, litigations on the invalidity of new shares issuing, litigations on the invalidity of corporation merger and separation, right of petition of corporate dissolution judgment of law court, I suggest improving programs combining the reality of Chinese corporation law.

Chapter five is conclusion. In this chapter, I summarize the chapters two, three and four, consider the existing issues concerning the protection of minority shareholders in Korean Incorporation Law, and suggest legislative programs in the improvement of Chinese corporations Law.

the issue of checking the controlling shareholders which concerns the right of petition of stay of illegal acts, the right of raising representative litigations, the right of dismissing directors, and the regime of outside auditor, outside director regime

the issue of new shares issuing which concerns the protection of minority shareholders, the defects of resolutions of assembly of shareholders and their remedies

the issue of the participation by minority shareholders of the management which concerns the right of petition of holding the provisional assembly of shareholders, shareholders' proposal raising right, the accumulative voting regime, the agency of right of resolution, the proxy solicitation, voting in written form