타인명의 주식인수와 주주명부 기재의 효력 -상장회사 실질주주명부에 관한 최근 대법원 전원합의체 판결을 중심으로-

Recently, en banc of the Korean Supreme Court (hereinafter ‘the Court’) has changed its existing stance on the effect of a list of shareholders by stating that stockholders rights shall be granted to listed shareholders rather than real stockholders. A list of shareholders is a document that records a status of shareholders and stocks of a company (hereinafter ‘the List’). A transfer of shareholders name means that a company changes from a listed shareholder’s name to a new one in a list due to a transfer of shares (hereinafter ‘the Transfer’). The List has been recognized to have countervailing power, presumptive power, and immunity, which is intended to uniformly determine legal relationships surrounding a company that involve multiple parties' interests. When a real shareholder is different from a listed shareholder, it is a question of who shall be recognized as a rightful one to exert a shareholder’s rights. You can see the case of issues of a stock acquisition under a disguised ownership (hereinafter ‘the Acquisition’) and a status of shareholders who have not completed the Transfer in the List, i.e. so called laggards. The Court had judged that the right stockholder is a real one in the case of the Acquisition while a listed one in the case of the laggards. The Court, however, has shifted its position to grant rights to a listed shareholder in the case of both the Acquisition and the Transfer regardless of whether the company is aware of the gap or not. The issue is about the effect of a register of a real shareholder (hereinafter ‘the Register’) of a publicly listed company. The majority of the Court has held that a company shall grant the stockholder’s right to a listed stockholder regardless of whether it is a listed company or not. On the other hand, a dictum told that a nature of the Register of a listed company was different from the List of a non-listed company, therefore, it was necessary to allow real shareholders to exercise their shareholders' rights in the same way as before. Accordingly, unlisted companies are still likely to face problems when there is a gap between real shareholders and listed shareholders in the future. It is desirable to settle the controversy by clarifying the provisions of Korean Commercial Act related to the effect of the List on this occasion.