무효인 주식매수선택권부여계약과 회사의 민사상 책임 - 대법원 2011. 11. 24. 선고 2010도11394 판결을 중심으로 -

Section (1) of Article 340-2 of Korean Commercial Code provides “A company may, as prescribed by its articles of incorporation, grant by a resolution of a general meeting of shareholders as provided for in Article 434 an option for purchasing new shares or its own shares (hereinafter referred to as "stock option") at a fixed price established in advance (hereinafter referred to as "exercising price for stock option") to its directors, executive directors, auditors or other employees who will, or will be able to contribute to the promotion of its incorporation and management, technological innovation, etc.: in cases where the exercising price for stock option is lower than the substantial price of the relevant stock, the company may compensate for the relevant difference by cash or transfer its own shares equivalent to the relevant difference. In such cases, the substantial stock price shall be appraised as of the date of exercising the stock option.”and Section (2) of Article 340-3 of Korean Commercial Code provides “In adopting at the general shareholders' meeting a resolution concerning the granting of a stock option as referred to in Article 340-2 (1), the following matters shall be determined: 1. The names of persons who are to be granted the stock option; 2. The methods of granting the stock option; 3. Matters concerning the price for exercising the stock option and an assessment thereof; 4. The period for exercising the stock option; 5. Categories and the number of shares to be issued or transferred, in cases of exercising the stock option, to each of the persons to be granted the stock option.”. The Supreme Court Decision 2010Do11394 delivered on November 24, 2011 decided that in case where stock option agreement based on the forged shareholder’s meeting even without taking place entered into between a representative director of the company and it directors and the company issued new stocks based on such agreement, such agreement is null in violation of the Korean Commercial Code; and the act of representative director falls under the Occupational Breach of Trust under the Korean Criminal Act; provided, however, that the consumated period of that crime is not the signing date of such agreement, but the issuance date of new stocks of the company in pursuit of the act of the parties under the agreement without special circumstances such as in case where the company have to compensate parties under the agreement based on tort duty under the Korean Civil Act, at the time of the signing date of the agreement. This Court Decision should be noted that the Court suggested a situation in case where the company should compensate under the tort duty under the Civil Act as an example of such special circumstances.