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미국 SEC의 주주제안에 대한 사전심사장치로서의 No-action Letter 제도
김진철 東國大學校 大學院 法學科 商事法專攻 2005 商事法 세미나 Vol.20 No.-
In 1997, because of IMF relief financial situation, the enterprises is exacted to adopt international norm and the international method and as one of international norms and methods, we introduced to shareholder proposal system at Securities Exchange Act(1997) and Commercial Law(1998). Some scholars think the usefulness of shareholder proposal system to skeptical but it is very important system that strengthen the function of shareholder meeting by inducing participation of shareholder to shareholder meeting with document voting system. But the most important problem of korean shareholder proposal is the fact that only board of company has the discretion in writting proposal fact at proxy materials. In case of the United States, To omit a shareholder proposal with the reason which is improper proposal, the company must receive an prior approval from the SEC. When considers reviewal person and mehtod to judgement of writting shareholder proposal(lawful characteristic or appropriate characteristic of shareholder proposal), there is a possibility of trying to think with 2 branches. It is a method of review by audit committee which is composed of outside director or by audit and by the 3rd agency in outside. But when considering the actuality of korea company circumstance, it is difficult to use of the first method because of special characteristic and independence problems of outside director or audit. thus It is due to mean to investigate the second method. For example, That is SEC No-action Letter process in United States. In United States, The legal adviser of the company usually determine by SEC N0-action Letter in writting shareholder proposal at proxy materials. Because It is not enough accumulated the judicial precedent in this field and the SEC almost doesn't contradict to No-action Letter, special lawyers relation to Securities Act is thinking No-action Letter as things of practical law. Thus, SEC No-action Letter is used in rule at practical affairs or operated with the judgement which has a legal binding force at times. Scholars says that No-action Letter doesn't bind SEC, Court and parties in the legal character. And there is not a legal binding force but also court takes attitude which defers strongly to No-action Letter. But nature of No-action Letter is not simple like the content which summarizes in theory. Consequently, No-action Letter system intend to prevention of violation act and evasion, reduction of a legal danger. And because the process is systematized in order to consider profit of relative persons and reduction administrative affairs through proceed clearness, ① respect to prevention of violation act and evasion of legal danger, the system will be able to prevent misappropriation of injustice exclusion of shareholder proposal, and ② it will be able to consider the profit of shareholder and company with clarity of that process and also ③ because No-action Letter is a kind of administrative procedure, it will produce result quickly and simply. Namely, where it is used as prior review system to shareholder proposal, it has merit which is able to review simply and quickly. But To introduce No-action Letter as prior review system to shareholder proposal, it is essential to secure professionalism of review agency as precondition. Thus, it must be prerequisite to put review division which is composed of legal expert like SEC in United States. But in our country case, it will be problem to secure enough professional staff who can reply to application of No-action Letter with responsibility after considering it carefully. Currently it will be insufficient to charge application of No-action Letter in structure of the members of the Securities and Exchange Commission etc. If It is prearranged introduction of the system, first, it must means completeness of structure of the members through budget management. If it is introduced after solving of this preceding subject, our shareholder proposal system which succeed system of United States, after investigating of the other point, also will be able to fix with the system it could be applied practically and as the system it will be albe to activate shareholder proposal
이중엽 東國大學校 大學院 法學科 商事法 2001 商事法 세미나 Vol.11 No.-
Signature Financial Group사는 (이하 Signature) State Street Bank&Trust사(이하 State Street)에 우호적인 판결을 내린 미국 Massachusetts 지방법원의 판결을 항소하였다. 미국 특허 No. 5,193,056('056특허)이 미국 특허법 제101조(35 U.S.C. 101)에서 규정하는 특허의 대상에 해당하지 않는다고 하여 특허의 무효를 위한 판결(summary judgment)을 법원에 요청하였다. State Street Bank&Trust Co. v. Signature Financial Group. Inc., 927 F.Supp. 502, 38 U.S.P.Q.2D(BNA) 1530(D. Mass. 1996)을 참조하시오. 특허청구가 특허 대상이 된다고 결론을 내렸기 때문에 하급심으로 환송한다.