업무집행에 관한 약정, 소위 프로큐어 조항의 이사에 대한 구속력과 집행

Procure provisions are unique in that they impose obligations upon contracting shareholders to make or direct the company or the directors to take some executive actions while general shareholder agreements impose obligation upon the contracting parties directly to act by themselves. Typical example is the Procure provision that require the contracting shareholders to appoint a certain person as the representative director in the Board meeting. There are various views on whether these Procure provisions are valid, If so, whether their binding force is contractual effect or organizational law effect. How they can be enforced against companies or directors is another issue. It is desirable to recognize the organizational law effects of the Procure clause because it performs the function of protecting minority shareholders that the company law does not grant, and can act as a useful means of private autonomy. In this article, we first looked at (i) various views on the effectiveness of the Procure clause, and its enforcement methods, and (ii) the grounds and context for acknowledging the effectiveness of the Procure clause as binding organizational law. We first looked at the necessity of recognizing its binding effect as the organizational law for certain shareholder contracts, and we presented three criteria for the recognition - whether all shareholders participated, whether the company participated, and whether the company in issue was a closed company. We then looked at the situation where violation of the Procure clause occur, and looked at some criteria for determining violations – gross unfairness, gross negligence, etc. Finally, we reviewed the “organzational law remedies” under the corporate law that can be resorted to by the plaintiff in case of violation of the Procure clause, the third corporate norm.