명의차용주주와 명의개서 미필주주의 비교-판례의 입장을 중심으로-

This essay analyzes the adequacy of scholars’ explanation regarding two following decisions of the Supreme Court. The court ruled that a borrower of a name in a subscription contract is a real shareholder regardless of its nominal person, if he purchases shares at his own account (March 26, 2004, judgment: 2002Da29138). Most of law professors agree with the above decision. The essay concludes that the grounds of the ruling are not sufficient, and a borrower of a name in a subscription contract can be regarded as a real shareholder only in exceptional circumstances. The decision of Supreme Court also set the principles that it is unlawful for a corporation to allow the voting of a registered owner of a share, when it knows or should have known but for recklessness that the registered owner is not a real shareholder (September 8, 1996, judgment: 1996-Da-45818). Some scholars explain that the principles can be applied to a shareholder who has not fulfilled the entry of a change of stockholders’ name at the stockholders’ list. But the explanation is contradictory to the opposing power of a corporation to the above shareholder under Article 337 (1) of Commercial Code. The above judgment deals with the determination of parties to a subscription contract, but the transfer of shareholder’ name on a stockholders’ list is related to the opposing power of a corporation to the a shareholder who has not fulfilled the transfer of stockholders’ name at the stockholders’ list. The two belong to a different dimension.