계약에 의한 주식양도제한의 효력

Abstract

Shareholders in closely held corporations can make contract restricting each other's ability to sell or otherwise transfer stocks. There are several motivations for such restrictions but the most important one is harmonious management of the corporation. Such restrictions are occasionally adopted by public-issue corporations to somewhat different purpose, for example they may be used to restrict the ownership of one class of share to given group such as employees. The question of the validity of the contracts restricting share transfer is confused by the fact that the shares have both contractual and property aspects. Thus the validity of the contracts depends on the fact weather they are resonable, that is weather they do not prevent the potential collection of invested capital. The type of restraint employed is the most important factor in determining the validity of the contracts restricting share transfer. First options, right of first refusal, and buy-sell agreements are more likely to be considered resonable as they do not prevent the transfer of share but alter the transferees and the prices. But if the prices is significantly under the fair value of the share and they do not reflect the capital gain, the contracts restricting share transfer would be invalid. Courts are hostile to consent agreements in the fear that they could prevent the transfer of shares. An absolute restraints on alienation would be unreasonable and therefore void. On the other hand absolute restraints have been upheld where they are to last only for a limited period in the U. S. But Korean Supreme Court denied the validity of the contract which restrained the share transfer for 5 years because it would prevent the transfer of share unreasonably. The contract restricting share transfer come into effect only between the parties. Thus it would be desirable to respect the agreements that restrict share transfer between the parties as long as it do not prevent collection of invested capital.