명의개서와 주주권행사에 관한 독일법의 동향

Late in March 2017, the Korean Supreme Court has made a groundbreaking decision regarding the effect of the registration in the shareholder register, which has become the focus of lively discussion. In the light of this decision, the present article examines the meaning and scope of the § 67 (2) sentence 1 with over 170 years old history of the German Stock Corporation Law(Aktiengesetz, hereinafter AktG). The AktG requires a special form of legitimation with regard to the holder of the registered shares of a stock corporation. In relation to a corporation only a person who has been registered as a shareholder in the share register shall be deemed as such[§ 67 (2) sentence 1 AktG]. Nonetheless, registration not a prerequisite for the acquisition of registered shares. The dominating opinion in germany infers an irrebuttable presumption from the § 67 (2) sentence 1 AktG. So even if the registered person is not a share holder in the material legal meaning, the corporation shall consider him a shareholder with respect to all rights and obligations attaching the shares(relative shareholder position). Contrary to the above mentioned, between third parties not the shareholder who is formally registered in the shareholder register, but the real shareholder shall be considered as such. The § 67 (2) sentence 1 AktG does not affect the substantive legal situation. § 67 (2) sentence 1 AktG takes account of the fact that the registration of shareholders in the share register may deviate from the true legal position and resolves this conflict in favor of the legitimacy of the registered person. Like the registration itself, the provision serves legal certainty and legal clarity. It should be clear and identifiable at any time which persons are entitled and obliged to be shareholders. In this way, the company should be spared the repeated need to verify the legitimacy of the shareholder. The provision therefore also serves the ease of legal transactions. In my viewpoint the holding of the Korean Supreme Court with the correctness of the result stands in the same line with the § 67 (2) sentence 1 AktG despite the partial deviations. But it is better to introduce a paragraph into the Commercial Code because of the retroactive effect of a decision. Like the german AktG, the paragraph shall regulates only who is registered in the shareholder register is in relation to the corporation considered to be shareholder. Such a paragraph grants legal certainty and saves massive administration cost for the corporation related to shareholders.