벤처투자계약에서 이른바 ‘이해관계인’의 책임에 관한 고찰

Recently the Korean Supreme Court declared four judgements on effectiveness of the clause granting a superior status or authority to a certain shareholder as an investor, and those judgement related to the scope of application and exceptions of the Principle of Shareholder Equality. It is understood that the exception of the Principle of Shareholder Equality is strictly limited to cases where theres are provisions of law such as the Commerical Act, however the above Supreme Court judgement stated that differential treatment could be permitted if special circumstances justifying it. However, the parties to a Venture Investment Agreement include, in addition to the investor and the investee corporation, Interested Party who are major shareholders or management officer of the investee corporation. It is necessary to consider whether the Principle of Sharehoder Equality applies to the Interested Party, and even if not, whether there are any situations where the principle acts indirectly, and more fundamentally, who the Interested Party is and what is the nature of its responsibility to investors under the Venture Investment Agreement. The liability of Interested Party in a Venture Investment Agreement varies in content and form, so it cannot be uniformly determined as joint and joint liability, guarantee liability, etc., and ultimately it should be judged according to the legal principles of contract interpretation. In particular, the obligation to purchase stocks and penalties borne by Interested Party to investors are similar in appearance to the obligations borne by an investee corporation to investors, and the Principle of Shareholder Equality applied to the latter inevitably affects its interpretation and validity of the Interested Party’s obligation to purchase stocks and penalties to investors indirectly. In practice, the responsibilities of the Interested Party are combined together in a Venture Investment Agreement, but strictly speaking, they have the nature of a shareholders’ agreement between shareholders who are investors and stakeholders who are major shareholders. If the interested party is the management officer, it is an agreement between the shareholders, who are investors, and the CEO or director. Through the recent Supreme Court decisions, it is confirmed that the principle of shareholder equality applies to the legal relationship between shareholders and the company, not to the legal relationship between shareholders and other shareholders or individual directors of the company. Also it is necessary to examine whether the relationship between the Interested Party’s liability to the investor and the investee company's liability to the investor, and if it is a relationship between a principal debt and a guarantee debt, it will be invalid under the principle of shareholder equality, whereas if it is a relationship of joint debt, it could be confirmed to be valid. Even before the recent Supreme Court decisions were declared, the Venture Investment industry required intentional or gross negligence as a condition for establishing the Interested Party's liability in order to ensure to be recognized as a separate liability distinct from the company's debt. Basically, in order to properly fulfill the company's obligations to investors, it has been structured in a form requiring active cooperation from the perspective of the company's institutions or shareholders. Especially, regarding the stock purchase obligation borne by the Investee corporation to the Investor, the possibility of denying its effect in practice has been recognized early on, and in order to supplement this, the stock purchase obligation of Interested Party has also been agreed upon. Through the recent Supreme Court decisions, it has been confirmed that an Interested Party's obligation to purchase stocks or penalties for Investors are not directly related to the Principle of Shareholder Equality. However, in relation to the investee corporation's liability to Investors, if its relation is the main debt and guarantee debt, then the Principle of Shareholder Equality applies to them. On the other hands, if its relation is joint liability, then it could be confirmed as valid. Yet, even if it is a relationship of joint liability, it is not clear that the Interested Party’s obligation to purchase shares or penalty for breach of contract with respect to the Investor is valid or not. And during the course of judgment on it, the interpretation of contract would be apply. I look forward to the accumulation of precedents and theories on the relationship with the governance system and other factors related to the Principle of Shareholder Equality that can indirectly affect its effectiveness, in addition to the Interested Party’s liability to purchase stocks and penalties for breach of contract, liability for damages, the relationship between the stakeholder's various liabilities to investors and the investee corporation's liabilities to investors, and the legal principles that may affect the validity in each case.