주식양수를 위한 임원추천권과 금전지급 약정(주주간 계약)의 효력 - 대법원 2017. 1. 12. 선고 2015다68355, 68362 판결, 대법원 2018. 9. 13. 선고 2018다9920, 9937 판결 - = The effect of the money-payment agreement(shareholder agreement) in lieu of the right to recommend an executive

다국어 초록 (Multilingual Abstract)

The plaintiff company raised 400 million won by a loan contract with the defendant, and acquired 200 million won from the sale of the shares owned by Employee Union to the defendant. The defendant acquired the right to recommend an executive officer, but it was replaced by a money-payment agreement. The plaintiff filed for the return of unjust enrichment. The Supreme Court considered the defendant's right to receive the monthly payment as a special contractual right held by the shareholder and creditor position, and if the defendant loses the creditor status and has only the shareholder status, and if the plaintiff continues to pay the money to the defendant, it violates the stockholder's equality principle.
The recommendation rights under a contract are provided to attract investment, which is one of the shareholder agreements. It was appropriate for the Supreme Court to view the nature of the recommendation right as a contractual right, but the description of it as a 'special right of contract' raises the question of what the special right means. The money-payment arrangement has the same effect on the company as the refund of investment money to the defendant, which should be judged invalid against the principle of maintaining capital. The above judgment that did not determine this point is wrong. In addition, the judgment on that giving the defendants the money is in violation of the principle of shareholder equality has the problem that the application requirements are not met. At the time of the monetary payment contract the defendant was not a shareholder and therefore does not meet the application requirements of the shareholder relationship, and even if the defendant is a shareholder, the principle does not apply to individual transactions such as funding contracts. In addition this principle is not problematic if there are approvals from disadvantaged shareholders, and if the Union holds all of the shares of the plaintiff company, the Union's participation in the transaction can be seen as a total shareholders’ approval. So it is possible to criticize that the above deal is valid and not contrary to the principle of shareholder equality.

참고문헌 (Reference)

• 1 이재홍, "회사법상의 제문제(하)" 재판자료 477-, 1987
• 2 최준선, "회사법" 390-, 2019
• 3 김건식, "회사법" 305-, 2018
• 4 권기범, "현대회사법론" 734-, 2017
• 5 김태정, "합작투자회사의 지배구조와 주주간 계약" (88) : 7-, 2018
• 6 천경훈, "주주간 계약의 실태와 법리 -투자촉진 수단으로서의 기능에 주목하여-" 한국상사판례학회 26 (26): 3-44, 2013
• 7 김지환, "주주간 계약과 정관자치법리에 관한 연구" 한국상사판례학회 26 (26): 197-242, 2013
• 8 김건식, "이사회 업무집행에 관한 주주간계약" 한국비교사법학회 26 (26): 335-378, 2019
• 9 권오성, "의결권구속계약에 관한 소고" 서울지방변호사회 38 : 298-300, 2008
• 10 송옥렬, "상법강의" 941-, 2019
• 11 진홍기, "株主들간 契約의 內容과 效力에 관한 硏究 － 英·美를 중심으로 우리나라와 比較法的 觀點에서 －" 한국상사법학회 26 (26): 179-229, 2008
• 12 田邊眞敏, "株主間契約と定款自治の法理" 265-, 2010
• 13 Götze, "Münchener Kommentar zum Aktiengesetz" 2019