주식매수선택권제도에 관한 소고 - 대법원 2011.3.24.선고 2010다85027판결을 중심으로 -

Abstract

Section 340-4(1) of Korean Commercial Code provides two or more year vesting period of non-listing corporation’s stock option. The Supreme Court interpreted the vesting period as a mandatory rule(2010 Da 85027, 24 March 2011). The two or more year vesting period of non-listing corporation’s stock option will be enforced even if the parties to a contract attempt to override or modify it. The court decision based on two primary reasoning. One is the definition of stock option in section 340-2(1) of commercial code. The Court erroneously interpreted the definition of stock option in section 340-2(1) only as an incentive stock option(ISO). The other is flexible application of listed corporation’s vesting period of commercial code section 542-3(4). Comparing vesting period of Section 340-4(1) with Section 542-3(4), the court indicated that the vesting period of Section 340-4(1) is deemed to be mandatory period. The author insists two main things. One is the Stock Option is provided not only for the incentive but also for the deferred compensation. The other is that the court interpretation is supposed to be vise versa; tight regulation for the listing corporation and laissez faire for unlisted corporation. For the explanation, the author introduces the primary test of the United States courts as well as other Korean Supreme Court cases.