주주 간의 계약에 관한 주요쟁점 ― 동반매도참여권(tag-along), 동반매각청구권(drag-along)을 중심으로 ―

Shareholders’ Agreement is an agreement between shareholders in a way other than the Commercial Act (Part 3 Company) or the Articles of Incorporation, and serves to supplement the order of company relations with shareholders' own exercise of rights or agreements on company operation. Shareholders’ Agreement between shareholders can be broadly divided into restrictions on stock transfer and agreements on the exercise of voting rights and business execution. The clauses restricting the transfer of shares in the shareholder agreement include the right to participate in the sale together and the right to claim the sale together, which are mainly used in joint ventures and venture capitals. The tag-along is the right to transfer to a third party under the same conditions with the transferring shareholder when one shareholder of the shareholder contract intends to sell the holdings to a third party. The drag-along is the right to sell the shares of the other shareholder with whom the shareholder has entered into a shareholder agreement when the shareholder disposes of his/her own shares. This is to maximize the sale price per share by collectively selling the other shareholders' stocks in a situation where it is difficult for one shareholder to receive a management premium with only the stocks he or she holds. Looking at the latest precedents on drag-along, the Supreme Court decided in 2021 for Doosan Infra Core China(DICC) related to the claim to sell DICC stocks without determining the counterparty or selling price of DICC stocks. Doosan Infracore Co., Ltd., the parent company of DICC, has ruled that simply refusing to comply with the plaintiff's request for data provision as a financial investor cannot be deemed to have impeded the fulfillment of the terms of the shareholder's contract related to the right to sell together, contrary to good faith. In addition, there are another type of Shareholders’ Agreement which may limit the exercise of voting rights(Voting Agreement) and the performance of duties of directors or auditors(‘procure’ clause). However, the general view is that a contract to bind voting rights is valid as long as it does not go against public order and morals. If not, it is considered valid. On the other hand, in the case of the Procure clause, the effect on the company is not recognized, and only the issue of whether or not the effect of the bond between the parties to the shareholder contract is recognized. The lower court ruled that the shareholder agreement on the exercise of voting rights by the directors could not have binding force on the performance of the directors' duties as well. Regarding the share transfer restriction agreement, there is no disagreement in theories and precedents about the fact that only the bond effect between the shareholder and the contracting parties is recognized and the company is not bound. I think it is necessary to continue research on measures to secure implementation effectiveness for mandatory neglect.