주주명부 기재의 적법성에 관한 소고 -대법원 2024. 6. 13. 선고 2018다261322 판결을 중심으로-

Recently, the Supreme Court held for the first time that two key legal principles apply to “persons duly recorded in the shareholder register” (2018Da261322). First, it set out specific criteria for determining the validity of entries in the shareholder register. Second, it ruled on who may exercise shareholder rights when the entry is invalid. This paper examines the soundness of those two principles as articulated by the Supreme Court. In particular, it analyzes who should be entitled to exercise shareholder rights when the register entry is invalid, considering academic theories, foreign legislative examples, the rationale of prior en banc Supreme Court decisions, and the purpose and function of the shareholder register system. As a result, this paper argues that (1) as a general rule, the person most recently and validly recorded in the register should be recognized as the shareholder entitled to exercise rights, but (2) in exceptional cases—such as when no such valid prior entry exists due to a new share issuance—it is appropriate to recognize the beneficial owner as entitled to exercise shareholder rights, regardless of the register. The decision under review concerned a company that amended its shareholder register to record a share transferee without conducting even a formal review. The Supreme Court held that shareholder rights should not be exercised by the improperly registered transferee, but by the person most recently and validly recorded as a shareholder. This approach is sound, as it adopts a balanced stance that respects the purpose and function of the shareholder register system while also reflecting the substantive rights relationship. Building on this analysis, the paper also considers multiple hypothetical future scenarios and examines who should be recognized as entitled to exercise shareholder rights in each case.