경영권 방어와 비례의 원칙 －대판 2009.1.30. 2008다50776 판결의 평석을 겸하여－

Abstract

The principle of proportionality, or simply 'the proportionality test', originates itself from public law in Korea. The principle has especially established its strong root in the field of balancing the interest of entire community - the state or public self-governing entity - with that of individual citizens. Concretely speaking, the principle of proportionality essentially consists of the following four elements. The first element is the legitimacy of the end. This requires that aimed for the end in engaging of particular state action by the state must be legitimated. The second is the appropriateness of the means. It signifies the suitability of the tools chosen by the state for realizing the end. The third is the minimal of the infringement. It is the requirement of the least restrictive means. The final element is the proportionality of legal interests, which represents that there must be proportionally great public interest created by the subject state action for it to restrict on a person's basic rights without violating the constitution. Nowadays in Korea, it seems like to be normal or prevalent that this principle would partly be introduced to the private law, particularly to the corporate law. In addition, Melvin Eisenberg expressed simply, “the corporate law is constitutional law.” Through this passage, he tried to emphasize the common phenomenon - conflict of interest between the entire entity and its individual members - observed between the both law sectors. In the hostile take-over action, the targeted boardroom would defend the status quo only in the frame of this principle.