株主間契約의 會社法的 效力論의 동향

The shareholders’ agreement denotes all kinds of contracts that exist between shareholders. However, the term that deserves to be discussed as a legal subject can be defined as the “agreement between shareholders concluded beyond corporate organizational control, which has the purpose of changing or limiting shareholders’ legal rights in their company, or modifying the rules for management of the company.” This article discusses the practical legal issues arising from the shareholders’ agreement according to the latter definition. Among them, the author focuses on shareholders’ pooling agreements and shareholders’ agreements to limit the transfer of shares. The core issue of this article is whether a shareholders’ agreement also binds the company. It has been the conventional theory that both the pooling agreement and agreements to limit the transfer of shares have no binding force on the company, And there has been no change until now, as far as the agreement to limit transfer of shares is concerned. Concerning pooling agreements, however, there are a few scholars that argue that pooling agreements for the joint venture of closed companies should be given binding effect on those companies. Also, some lower court cases have adopted this theory, while the majority of lower cases maintain the traditional theory. The minority theory has been strongly influenced by U.S. state corporate laws and the recent minority opinion of Japanese company law which was also influenced by the U.S. law. Considerable numbers of U.S. states recognize the pooling agreement’s effect on the company and allows its specific performance in their corporate laws. In this article, the author introduces the outlines of both theories and summarizes his opinion. The author supports the majority theory emphasizing particularly that the above U.S. state laws cannot be the model of Korean company law which was based on the civil law system. As the Korean company law based on the civil law system is built on the premise of “the separation of legal entities between company and its shareholders,” the application of the minority theory might cause the destruction of the whole structure of company law theory. In conclusion, the author suggests that the solution this debate on the legal effect of shareholders’ agreement by the statutory rule is setting up express criterion for deciding the corporate effect of the shareholders’ agreement under the company law.