주식회사 설립을 수반하는 동업약정의 법적성격과 적용법리 - 대법원 2024. 6. 27. 선고 2022다302022 판결을 중심으로

When several parties enter into a partnership agreement to engage in a joint business and establish a corporation as the vehicle for that joint business, it has long been a settled principle under Korean Supreme Court precedent that such an agreement is premised on the joint business being conducted under the corporation’s name and governed internally and externally by corporate law. However, in the case underlying Supreme Court Decision 2022Da302022 decided June 27, 2024 (hereinafter the “subject case”) where two parties concluded a partnership agreement that entailed the establishment of a corporation, but only one party became a shareholder, the Supreme Court, while reaffirming the traditional principle, newly articulated an exceptional rule that: for a joint business under a partnership agreement to be operated in the name of a corporation and governed by corporate law, the parties must acquire the corporation’s shares with their invested funds and become shareholders; and even where a non-shareholding party has invested funds, such contribution by itself cannot be seen to suffice to deem the parties as having jointly established or operated the corporation, nor can the corporation’s shares or its assets be treated as property belonging to the partnership. The Supreme Court quashed the lower court’s judgment and remanded the subject case, instructing it to examine the nature and substance of the agreement, whether any partnership property existed apart from the corporation’s assets, and how the plaintiff could seek the restitution of contributions upon withdrawal from the partnership. In light of the conclusion of the subject case, the exceptional rule aims to prevent an inequitable result in which a non–shareholder investor would otherwise have no means to recover its capital. Although the subject case’s awareness of the issue and its ultimate conclusion appear justifiable, the exceptional rule it employed especially the notion that a joint business may be governed by corporate law only if all co-venturers become shareholders invites reconsideration. Once a corporation is established pursuant to a partnership agreement, the mandatory provisions of corporate law necessarily govern legal relations concerning the company. Moreover, the latter part of the Supreme Court’s exceptional rule, which denies joint establishment or operation by non–shareholder participants and excludes corporate assets from the scope of partnership property, merely reflects principles already derived from corporate law itself namely, that non–shareholders may not interfere in the management of the corporation and that the corporation is an independent legal entity. It is therefore necessary to re-examine both the need for and the validity of this exceptional rule. To assess the necessity of the Supreme Court’s exceptional rule, it is first essential to clarify the scope of the basic principle itself. An exceptional rule becomes necessary only when the application of the basic principle alone cannot achieve a fair resolution of the dispute. In particular, in cases involving partnership agreements that entail the establishment of a corporation, the crucial issue concerns the meaning of “the principles of corporate law.” If the term refers only to the formal corporate law as codified, for example, in Part III of the Commercial Act, then the need to recognize exceptional rules beyond the statute increases. Conversely, if it denotes the substantive body of law governing all legal relations surrounding a corporation, then even exceptional rules are already encompassed within that substantive framework, eliminating the need for a separate exception. A review of precedents concerning partnership agreements involving the establishment of a corporation reveals several cases in which the Supreme Court, even while invoking only the basic principle, acknowledged the binding force of the parties’ inter se arrangements under such agreements. This indicates that the “principles of corporate law” referred to in the basic principle should be understood as substantive corporate law one that inherently accommodates the validity of specific inter-party covenants reflecting the parties’ agreed terms. At the same time, the legal characterization of the relationship must be clearly identified to determine the applicable legal principles. Clarifying the meaning of the basic principle thus requires first defining the legal nature of a partnership agreement accompanied by the establishment of a corporation. The Supreme Court characterized such an agreement as “a mixed contract combining a share purchase agreement and an agreement among shareholders regarding joint management and profit sharing.” Yet this characterization seems uncertain in the subject case, since the contract did not contain any share-purchase component. Moreover, an examination of other cases involving similar agreements shows no precedent providing a precise definition of their general legal nature. This commentary, therefore, refers to precedents on “joint-venture agreements” and argues that a partnership agreement involving the establishment of a corporation constitutes a mixed contract combining a company-formation agreement and various inter-party covenants related to the company’s operation, among which the latter possess the nature of an internal partnership (naejeok johap). Given that prevailing doctrine and case law admit at least contractual (obligational) force between parties to shareholder agreements, the “principles of corporate law” in the basic principle should be interpreted substantively as encompassing the idea that private agreements among parties are valid insofar as they do not contravene public policy, the principle of good faith, or the essential nature of the corporation. From this perspective, even when not all partners become shareholders, the basic principle alone allows both the formal corporate rules under the Commercial Act and the civil-law principles governing internal partnerships to apply concurrently. Accordingly, the exceptional rule articulated in the subject case appears neither necessary nor justifiable.