상호주(상법 제369조 제3항)의 판단시점과 판단기준 - 대법원 2009.1.30. 선고 2006다31269 판결을 중심으로 -

Art. 369(3) of Korean Commercial Law provides that in case company, parent company and subsidiary company or subsidiary company owns the shares of the other companies over one tenth of the total issuing shares, shares of company or parent company which the other company owns have no voting rights. This provision aims to eliminate the possibility that officers of both company influence the resolution of the shareholder meeting without owning shares. Supreme Court Decision Jan. 30, 2009 2006 da 31269 makes the timing and requirements for deciding cross-owned shares(Art. 369(3) of Korean Commercial Law) clear for the first time. The Supreme Court decided that ①timing for determining whether cross-owned shares have voting rights or not is the date of shareholder meeting, and ②requirements for determining whether cross-owned shares have voting rights or not is the real ownership of the shares, not the transfer of names in the lists of shareholders. This article examines this case by reviewing the scholar's opinions and the Japanese Law which was the model of Korean Commercial Law. Especially this article focuses on the meaning and intension of Art. 369(3) of Korean Commercial Law. This article consists of four Parts. PartⅠ. suggests the legal issues and the importance of this Case. Part Ⅱ. describes the general description of the Case. Part Ⅲ. analyses the scholar's opinions and the Art. 308(1) of Japanese Company Law comprehensively. Part Ⅳ. analyses the Case Law and suggests the writer's opinion. In conclusion, the writer's opinion is for the Supreme Court's decision.