풋백 옵션(put back option)이 포함된 주식양도계약의 법적 성질 - 서울고등법원 2013.4.19. 선고 2011누38263판결을 중심으로

In the put option contract, the holder has the right, but not the obligation to sell some underlying asset at an agreed-upon price on or before the expiration date of the contract, regardless of the prevailing market price of the underlying asset. This kind of contract is often used in the contract of sale of stocks as well as financial investment products in financial markets. As part of the contract of share transfer, the parties may include terms providing that the seller will purchase the security at the buyer’s option or upon the happening of a certain contingency. This is called as “put-back option.”In this litigation, when the put-back option of share transfer agreement includes additional terms that the buyer has the right to ask price adjustment after the sale and to ask profit incineration and capital reduction at the price of original price plus 20%. First, put-back option in this case should be recognized as repurchase(means new contract), not as termination of contract, because it may not be terminated by unilateral declaration, or by fulfillment of condition. Moreover, it does not contain no duty of restitution. Second, as a result of the first transfer agreement, transfer of the title has been finished and so execution of put-back option is a separate contract. Finally, the clause of payment adjustment just shows that the original contract is the investment, not the loan.