주주간 계약과 정관자치법리에 관한 연구

Participants in close corporations frequently enter into agreements among themselves to provide protection to minority shareholders against the principle of majority rule or to tailor the corporate structure to the participants’ particular desires and the needs of the enterprise. The validity of a shareholders’ agreement depends on the mandatory rule. A shareholders’ pooling agreement may take a number of forms. In a shareholders’ agreement, the parties agree to vote their shares in the manner set forth in the agreement. A pooling agreement is to be distinguished from a shareholders’ management agreement, in which the parties attempt to control corporate decisions that otherwise would be made by the board of directors, such as determining corporate policy, selecting officers, fixing salaries, and declaring dividends. The court held that, absent any fraud or apparent injury to public policy, the agreement was valid. A shareholders’ agreement is frequently the document that imposes restrictions on the transfer of shares. The court held that restrictions transfer of share was valid. Shareholders’ agreements that tend to control directors’ actions have often been held invalid even though the agreements were made in good faith and actually were beneficial to the company and its shareholders. The shareholders’ agreement that restricted the discretion of the directors were invalid as contrary to public policy. But such an agreement is now usually held valid, at least if all shareholders are parties and the agreement is not detrimental to prospective shareholders. Agreements to vote for specified persons as directors or to votes as the holders of a majority of the shares in apool may direct are valid and binding if they do not contemplate limiting the discretion if the directors or the committing of any fraud, oppression, or wrong against other shareholders. Objectives sought in shareholders’ agreements can sometimes be achieved by using special charter provisions. For example, charter clause imposing an extraordinarily high quorum or voting requirment for shareholder and director action have frequently been employed to allocate control within a close corporation. Such provisions have the effect of giving minority shareholders a veto power over corporate decisions. When dissension occurs in a parties of agreement, the shareholders can pay for damages by default obligation. Also, the shareholder could have a right to require law-breaking shareholder to purchase their shares, or to apply for an injunction to do as voting agreement.