이사회의 권한에 관한 주주간 계약의 논점―대표이사 선임에 관한 주주간 계약의 채권적 효력을 중심으로―

Recent lower court decision(Seoul Central District Court, 2014kahap21391) has emerged addressing the validity of the so-called “procure clause” agreed upon by shareholders regarding the appointment of a representative director. The procure clause refers to a provision in a shareholders' agreement where shareholders agree on matters related to the execution of duties by the board of directors or the exercise of voting rights as directors. The parties to a shareholders' agreement are shareholders, but the agreement stipulates certain actions or duties to be performed by the board of directors or directors, rather than the shareholders themselves who are the contracting parties. Thus, unlike shareholders' voting agreements, this type of agreement assumes a distinction between the contracting party (the shareholder) and the acting party (the directors or the board). Since the purpose of the clause can only be realized through the actions of a third party, enforcing and implementing such provisions may prove more challenging than enforcing voting agreements between shareholders. Moreover, under the Korean Commercial Code, it raises the issue of whether such agreements, which pertain to matters beyond a shareholder's authority, have obligatory legal effect. In a recent preliminary injunction case, the lower court dismissed the applicant's request, on the grounds that the applicant lacked a sufficient legal interest. This article examines the validity of a shareholders' agreement where shareholders make an agreement concerning the authority of the board of directors. It highlights issues such as whether a director appointed by the shareholder is obligated to comply with such an agreement, and whether following the shareholder's instructions could constitute a breach of the director's duty of care and loyalty to the company.