주주간 계약의 회사법상 효력에 대한 계약유형별 쟁점

Shareholder’s agreement has been used for a longtime in our practice influenced by the US law and its practices. Due to the influence of American practice, shareholder contracts are concluded between those who wish to become shareholders and existing shareholders in various situations, such as the establishment of a company in Korea, transfer of shares, and investment contracts. However, although many papers have been written on the effectiveness of such contracts between shareholders, most of the papers seem to have been focused on discussions on the validity and invalidity of contracts. State law in the United States has explicit provisions regarding contracts between shareholders, but our commercial law does not have separate provisions, so its effect and remedies must be viewed in relation to the corporate legal system under the premise of civil law. The discussion on the validity of the contract is an issue that must be viewed separately into the issue of credit validity and the issue of corporate law validity. This is because the corporate law has a collective law nature in the continental legal system, and in the case of a stock company, which is a physical company, the provisions that form the basis of the physical company are often mandatory provisions and effective provisions, so the effect of a contract between shareholders that violates this cannot be enforced against the company. In the case of a contract that is intended to be achieved through directors, the director cannot be seen as being restricted by the contract between shareholders, so unlike the articles of incorporation or resolutions of the general shareholders’ meeting, it is difficult to become the basis for a director’s violation of duties. Regarding capital raising, our legal system guarantees shareholders’ preemptive rights when new shares are issued, but some states in Japan and the United States do not recognize this. Given that the principle of shareholder equality is applied more strictly in the Continental legal system compared to the Anglo-American legal system, the issue of our court’s recognition of exceptions to the principle of stock equality and the effectiveness of the contract between shareholders must be examined in connection. In addition, there is an issue as to whether specific performance can be sought in addition to being liable for damages as a result of the violation. The U.S. state of Delaware law can provide remedies for violation of the contract between shareholders, including specific performance, as an effect of violation of the contract between shareholders in various forms based on the judgment of the court of equity. However, our civil law is different in that it is based on damages and requires the help of the corporate law to be able to utilize the remedies under the corporate law system. This also applies to contracts between shareholders.