주주간 계약의 실태와 법리 -투자촉진 수단으로서의 기능에 주목하여-

Under the traditional approach, Korean courts and legal commentators are very reluctant to acknowledge the enforceability of the shareholders’ agreement. According to the prevailing view, shareholders’ resolutions and board resolutions made in breach of the shareholders agreement are still valid, and one cannot pursue specific performance of the shareholders’ agreement. Monetary damages including liquidated damages would be the only practical remedy available for the breach of the shareholders’ agreement. This article criticizes such a view for lack of understanding of the positive functions of the shareholders’ agreement. Shareholders enter into agreement because the default rules of the corporate law are insufficient to harmonize their conflicting interests and satisfy various preferences. By means of the shareholders’ agreement, they create new rules more compatible to their demands than the default rules provided by the corporate law. As a result, the shareholders’ agreement facilitates the investment that would not have been possible absent such an agreement. This article categorizes the shareholders’ agreements found in Korea into three types, and explores the parties’ incentives in each type. This article also discusses various issues typically addressed in the shareholders’ agreement, introduces examples of the key provisions, and analyzes the ways to secure its enforceability. Recent trial court cases on the shareholders’ agreement are also analyzed in detail. This article criticizes the reluctant approach of the court and proposes that the enforceability of the shareholders’ agreement be more positively acknowledged. For example, a preliminary injunction to order exercise of the voting rights in accordance with the shareholders’ agreement should be granted if such a duty exists under the agreement.