주주명부기재의 효력- 대판 2017. 3. 23, 2015 다 248342 의 평석을 겸하여 -

The author tried in this article a critical annotation on the famous decision of Korean Supreme Court, sentenced en banc on March 23rd 2017. The 9 from the entire 13 Justices were for the formalism, that is to say, that only the legitimately registered one on the shareholder registry is able to exercise his or her shareholder rights, independent from whether the registered is also an actual owner of the stock in the material meaning. The minor opinion of the Court was against such a formalism. The author shows at first the recent statistics relating to the ratio of each legal form released by the National Tax Services of Korea at the beginning of every year and says that the economic and legal realty in Korea is not so friendly or helpful to the major opinion of the Court. He thinks, that an application without exception or a rigid implementation of Korean Commercial Code on every stock corporation is nowadays practically impossible, because of the popularity and large spectrum of 'stock corporation' in Korea and due to the overwhelming ratio of small and closed corporations in korean economic circle. As far as the legal form of 'stock corporation' concerned, there prevails worldwide a variety of types, in especially relating to the internal governance. There are also lots of researchers, who reluctantly enjoy the legal concept of "the personalised stock corporation". Nobody denies nowadays, that there exist irregular types of corporations, which the lawmaker could hardly imagine or foresee in the legislation process. Almost every civilized countries have been, therefore, eager to prepare the countermeasure by providing additional provisions in the their code books or by establishing special common law rules for this phenominon. The common law countries have proudly developed since long the law of 'closed corporation'. The German Stock Corporation Act made in the year of 1994 'The Special Statute Relating to the Stock Corporation in Small Size' ("Gesetz fuer kleine Aktiengesellschaft"). It contains, for example, the provisions permitting establishment of the company by one-man (section 2 of German Stock Corporation Act) and provisions permitting the shareholder meeting without any statutory calling procedures ("Universalversammlung") also in a stock corporation (section 121 subsection 6 of German Stock Corporation Act). The Korean Commercial Code provides also some special regulations for the small-sized corporation. They permit a special internal governance for the stock corporation with maximum capital volume of 1 billion Won. The author concludes in this article, that the major opinion of the Court should be applicable only to the listed companies, in contrast the minor opinion of this case should be applicable to the non-listed companies.