주주 열람권의 절차적 재설계에 관한 비교법적 연구 ― 2025 델라웨어 일반회사법(DGCL) §220 개정을 중심으로 ―

초록

This article aims to evaluate the reformation of the Delaware General Corporation Law (“DGCL”) §220 with reference to case law and its amendment under the 2025 Senate Bill 21 (“SB 21”). The reformation of the Delaware General Corporation Law places an emphasis on the need to examine the significant shift from shareholder inspection rights to an operational approach which is designed to govern litigation incentives and litigation economics. Historically, Delaware courts have informed and encouraged shareholders to undertake the information gathering process prior to initiating legal proceedings by using the §220 tool in fiduciary duty and derivative litigation. As such, the inspection right currently performs a role similar to limited discovery. Although this jurisprudential expansion has significantly enhanced the effectiveness of shareholder monitoring, several drawbacks have been highlighted which include exploratory “fishing expeditions,” abuse of litigation, and an increase in the uncertainty of corporate management. Due to the modification of §220, SB 21 constitutes a legislative reaction to these events. The modification restructures access to information through a systematic approach by codifying the categories of documents that can be inspected, reinforcing the need for specificity of inspection purposes and strengthening the relationship between purpose and documents. Additionally, a limitation is set on the submission of “functionally equivalent” materials while reinforcing protections for corporate confidentiality. Rather than weakening shareholder rights, this reform provides additional strengthened procedural components which may suggest that the revised DGCL §220 provides a comparative perspective for shareholder inspection rights under Korean corporate law. Through drawing from this framework, a foundation is provided to undertake a comparative analysis of the amended Delaware §220 and Articles 466 of the Korean Commercial Code. While Korean law guarantees minority shareholders’ information by using broad inspection objectives and ex post judicial control, weak ex ante mechanisms are used to prevent the usage of inspection rights as a justification for legal action. By comparing Articles 466 with §220 prior to and post the amendment, this article proposes that discussions regarding shareholder information rights should consider several perspectives rather than employing a binary perspective. As an alternative, a procedural reorientation is presented which involves methods such as tiered categories of inspectable materials, a methodical framework that links document relevance and purpose, the juridification of proportionality and the introduction of conditional disclosure mechanisms such as restrictions on the scope and use of information, confidentiality requirements and redaction. Overall, this article expresses the view that shareholder information rights should be perceived as components of a dynamic institutional design with the aim of regulating costs associated with litigation while reducing conflict rather than static entitlements.

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