다수파주주의 억압행위와 소수파주주의 합리적 기대|RISS 상세보기

다국어 초록 (Multilingual Abstract)

A close corporation is a business organization typified by a small number of shareholders, the absence of a market for the corporation's stock, and substantial shareholder participation in the management of the corporation. Close corporation usually formed by family members and friends.
In close corporations, the minority shareholders often become employees and rely on their salaries as their return on investment. As the majority shareholders may control compensation and employment decisions, not only is the minority shareholder vulnerable to losing his or her investment, but the minority shareholder is often at risk of losing his or her job.
Over the years, state legislatures and courts have developed two significant avenues of relief for the "oppressed" close corporation shareholder. First, many state legislatures have amended their corporate dissolution statutes to include "oppression" by the controlling shareholder as a ground for involuntary dissolution of the corporation. Second, particularly in states without an oppression-triggered dissolution statute, some courts have impose an enhanced fiduciary duty between close corporation shareholders and have allowed an oppressed shareholder to bring a direct cause of action for breach of this duty.
The courts have developed three principal approaches to defining oppression. First, some courts define oppression as burdensome, harsh and wrongful conduct. Second, some courts link oppression to breach of an enhanced fiduciary duty owed from one close corporation shareholder to another. Third, a number of courts tie oppression to the frustration of the reasonable expectations of the shareholders. Of these three approaches, the reasonable expectations standard acquires the most approval, courts have increasingly used it to determine whether oppressive conduct has taken place, and commentators have generally been in favor of the reasonable expectations standard.
Until the 1980s, Illinois led the United States in developing the doctrine of shareholder oppression. Illinois courts held that oppression did not require a finding of fraud or illegal conduct, and that heavy-handed and arbitrary conduct on the part of another shareholder will constitute oppression for the purpose of dissolution. Several jurisdictions have followed the Illinois decisions in recognizing broad bases for oppression.
After the 1980s, New York led the way in developing the reasonable expectations test in order to determine whether there has been oppressive conduct. A reasonable expectation has been defined as an expectation (1) that is known to or assumed by the other shareholders and concurred in by them; (2) that is embodied in understandings, express or implied, among the participants; and (3) that is often derived from the parties' actions and course of conduct.
Courts and commentators have observed that reasonable expectations are based on understanding shared by all of the stockholders at the outset of a business. To ascertain the reasonable expectations of close corporation shareholders, one could gather empirical evidence by asking a large number of stockholders about the entitlements they expected to receive as a result of their investments in close corporations. Even if a broader pattern of behavior in close corporations is recognized, specific evidence from the particular dispute before the court seems to be necessary as well.
Courts may willing to find reasonable expectations based on a broader behavior pattern and thin specific evidence because they understand the economics behind an investor's commitment of capital to a close corporation.
Once reasonable expectations have been established, the shareholder oppression doctrine protects them through an expansive range of remedies. The breath of remedies for shareholder oppression provides the courts with great flexibility to choose a remedial scheme that most appropriately responds to the aggrieved shareholder's harm. For a number of reasons, the buyout remedy itself is particularly significant. First, the buyout remedy functions as a market for the aggrieved minority shareholder by allowing the shareholder to recover the capital that he or she invested in the company. Second, the buyout remedy creates an equitable parting between the majority shareholder and the aggrieved minority shareholder. Third, the buyout remedy does not require the bargain between the shareholders to be articulated with precision.
As long as a court is satisfied that general understanding of employment or management was shared between the investors, no further detail on these understandings is typically needed. Majority conduct that unjustifiably frustrates such general understandings will trigger oppression liability and will typically allow for application of the buyout remedy.
In determining whether to order equitable relief, dissolution or a buyout, the court shall take into consideration the duty which all shareholders in a closely held corporation owe one another to act in an honest, fair, and reasonable manner in the operation of the corporation and the reasonable expectations of the shareholders as they exist at the inception and develop during the course of the shareholder' relationship with the corporation and with each other.

번역하기