주식의 이중양도와 명의개서의 효력 - 대상판결 : 대법원 2014. 4. 30. 선고 2013다99942 판결 -

The Korean Commercial Code sets forth that “a Stock Company shall immediately issue share certificate after its incorporation or after the date of payment on new shares” (Article 355①). It also prescribes that “the transfer of shares shall be made with delivery of share certificate.”(Article 336①). Korean Commercial Code also allows the transfer of shares made before the issuance of share certificate “if six (6) months have passed since the date of its incorporation of the company or the date of the payment of the subscription price for new shares.” In other words, it’s effective to transfer shares of stock company without transfer of share certificate if six (6) months have passed. But in this situation, double transfer of shares might be an issue since shareholder could double transfer his shares to third parties. Double transfer issues might be more serious since most of stock company in Korea are non-listed small sized companies, and it is not unusual that the many companies have not used to issue share certificates even after several years passed since its incorporation. In this Article, I have reviewed legal issues regarding double transfer of shares, especially in relation to the Supreme Court Judgment sentenced on April 30, 2014 (2013da99942). In particular focused on “the priority of requirements for setting up assignment of nominative claim against obligor (stock transferor) and the issuing company of the stock. The paper is structured as follows: In section Ⅱ, I have reviewed the contents of the supreme court judgement 2013da99942. In section Ⅲ, analyzed legal issues regarding double transfer of shares made before the issuance of share certificate. I also endeavored to clarify the relationship between requirements for setting up assignment of nominative claim against obligor under Article 450 of Civil Code and entry of shareholders register under Article 337① of Commercial Code. In section Ⅳ, I discussed the effect to the transfer of title on shareholder registry. I also research into regulations of major countries. Finally, in section Ⅴ, I proposed a new amendment to the Korean Commercial Code to unify the method of perfecting transfer of shares between transferee of shares and the issuing company. I suggested that transfer of shares shall not be perfected against the issuing company as well as transferee unless the name and address of the person who acquires those shares is recorded in the shareholder registry.