주주제안권 침해로 인한 손해배상책임과 손해의 산정 ― 대상판결 : 대법원 2025. 10. 16. 선고 2019다236385 판결 ―

초록

The subject judgment is a case that recognized the liability for damages of a company and its directors toward minority shareholders in a case involving the infringement of lawful shareholder proposal rights. It holds significance in that it confirmed that even a proposal aimed at exercising the appraisal rights of shareholders dissenting to the transfer of major assets can constitute a lawful shareholder proposal, thereby acknowledging the infringement of the shareholders' rights. However, several issues remain to be examined regarding the evaluation of damages, the timing of their calculation, and the structure combining the claim for damages with the transfer of shares. This article proposes the doctrine of prevention of condition fulfillment as an alternative legal construction capable of explaining the outcome reached by the judgment. It is submitted that this construction can account more coherently for the problems that the judgment sought to resolve through the law of tort. In addition, through a comparative legal analysis, this article examines how major foreign jurisdictions provide ex ante remedies prior to the convening of a shareholders' meeting in cases of infringement of shareholder proposal rights. By contrast, Korean law is found to be virtually devoid of such preventive mechanisms, leaving courts with no choice but to rely on ex post remedies, a legislative deficiency that this article analyzes in detail.

키워드