벤처투자계약의 국내법상 수용과 관련한 쟁점 － 상환전환우선주 조항의 효력을 중심으로 －

Venture capital terms have been formed in the United States to protect a venture capital from various investment risks to be posed during the life cycle of a startup it invests in. In the course of the transplant of the U.S. venture capital terms into the Korean market, however, these terms have been subject to a constant challenge by the Korean corporation law. For example, a deemed liquidation preference is interpreted to be unenforceable due to its violation of the capital maintenance principle, one of the mandatory principles under the law. Since the exercise of a redemption right is permitted only in the presence of retained earnings under the law, a put option has been granted as an alternative, but it is likely to be deemed unenforceable due to the restriction of treasury shares under the law. These problems have considerably undermined the merit of redeemable convertible preferred shares (“RCPS”), the most commonly used form of interest for venture investment, over common stocks. In response, the Korean venture capital terms have evolved to hold startup entrepreneurs personally liable to make up for the potential non-enforceability of the rights vis-à-vis the startup. This paradox calls for the reconsideration of the current trade regulations and the practice that extensively applies the mandatory principles of the corporation law to issues irrelevant to the protection of minority shareholders.