주주총회 동의 없는 영업용재산(자회사 주식) 양도의 효력과 신의칙의 적용-대법원 2018. 4. 26. 선고 2017다288757 판결-

In the matter the plaintiff claimed the performance of business transfer contract with the defendant company and the defendant protested the claim to be invalid because of the absence of defendant’s shareholders’ meeting. According to the decision defendant could be allowed to assert the validity of the contract because there was no consent of shareholders’ meeting with the exception of all shareholders’ consent. To carry out the purpose of the mandatory provision in the event of violation of Article 374 Commercial Act, the ruling does not apply good faith rule, however it is problematic when the same mandatory provision competes with each other. The transferee with the necessary caution in a business transfer transaction should be protected by the application of good faith rule, so the company should be restricted from claiming invalidation of the contract on the grounds that there was no consent of shareholder's meeting. I agree with the conclusion of the decision, but it is insufficient to emphasize the mandatory nature of Article 374 and not to determine the applicability of good faith rule which is also mandatory. Further consideration should be needed on the application of good faith rule.