계약에 의한 주식양도제한에 관한 검토

Corporations especially such as joint venture companies need to restrict the transfer of shares to operate the company as desired by the joint venture partners. However, the methods of restriction of transfer of shares provided in the Commercial Code in Korea are very limited. Under the Korean Commercial Code, the transfer of shares can be restricted by the articles of incorporation. The transfer of shares is also restricted before issuing certificate of shares as well as when selling subscription rights or acquiring corporation’s own shares. Such methods of restriction of transfer of shares are not suitable to meet the various needs to restrict the transfer in various ways. In the joint venture agreement or other shareholders agreement various restrictions for the transfer of shares are used, such as limiting transfer of shares for certain period of time, minimum shareholding ratio for certain period of time, call option or put option, right of first refusal, standstill agreement, and tag-along clause. There are few analysis on the validity of those restriction provisions, especially after the amendment of commercial code to include the restriction of shares by the articles of incorporation. After Shinsaegi Communication case decision by the Korean supreme court (Sep. 28, 2000 decided, 99 da 48429), the relationship between the restriction by the articles of incorporations and restriction by the agreement is correlated, since the restriction by the corporation can be a standard to decide whether the restriction agreement is valid or not. According to the decision, if the restriction by the agreement is more stringent than the allowed restriction by the articles of incorporation, the agreement can be regarded as void. However, the restriction of transfer of shares by the articles of incorporation is only one of the restrictions allowed under the commercial code. Other restrictions to the transfer of shares might be provided as voluntary provisions of articles of incorporation as well as requiring the board’s approval by the articles of incorporation, if those are not against the nature of corporations. Thus the methods of restriction of transfer of shares by agreement need to be reviewed for the validity based on its own reasonableness considering the fundamental nature of corporation, the purpose of such restriction, and the degree of restrictions. Based on such reasons, such restriction methods by agreement mentioned above usually will be valid, except only very rare cases, such as unreasonable purpose or method for such restrictions.