약정에 기한 형성권 행사기간의 법적 성질에 관한 고찰 - 대법원 2022. 7. 14. 선고 2019다271661 판결 (공2022하, 1588)을 계기로

Abstract

The legal nature of the exercise period for the right is broadly distinguished between the extinctive prescription(erlöschende Verjährung or Verjährung) and the exclusion period(Ausschlussfrist or Präklusivfrist). In the context of the formative right which alters legal relations by the unilateral expression of the rights holder's intent, a similar exercise period can be conceptualized. In Korean Civil Law, the exercise period of the formative right is generally considered as the exclusion period, in legal theories and the case law altogether. The Subject Case by the Supreme Court of Korea also determined that the exercise period of the formative right, specifically the right to demand the purchase of shares granted to a venture capital in a venture investment contract, falls under the exclusion period. A venture capital refers to a capital group that invests in early-stage ventures or startups in the form of adventure capital, with the primary goal of capital gains. To achieve their objectives and preferences, a venture capital enters into venture investment contracts with the target company as well as controlling shareholders or other stakeholders. Such venture investment contracts, aimed at protecting the interests of the venture capital, include various clauses to prevent dilution of capital and facilitate the recovery of the venture capital investment. Granting the right to demand the purchase of shares to the venture capital in case of a breach of obligations by the target company or controlling shareholders during the venture investment is also one of these clauses. Meanwhile, the extinctive prescription and the exclusion period differ in several aspects, including the purpose of the system, the occurrence of effects, the retroactivity, the recognition of interruption/suspension, the discretionary judgment, the waiver of rights, and more. However, opinions have emerged questioning whether the extinctive prescription and the exclusion period are fundamentally different. Some argue that legal principles related to the extinctive prescription can be analogically applied to the exclusion period. The case law also shows instances where legal principles related to the extinctive prescription were analogically applied to the exclusion period in individual cases. Nevertheless, the generally accepted legal theory in Korea, as well as in the Japanese legal scholarship, is that the legal nature of the exercise period for the formative right is generally considered to be the exclusion period even though there are cases in the Japanese jurisprudence where the exercise period of the formative right was treated as the extinctive prescription. However, in the case of the formative right, especially those based on contracts, there are sparse logical grounds for categorizing the exercise period as the extinctive prescription. Additionally, interruption reasons such as the approval can be applied to the formative right in contracts, and there are situations where such interruption is necessary. Considering the purpose of the extinctive prescription, which prioritizes the protection of the legal expectation and the legal stability based on it over the swift confirmation of legal relations, it may be more appropriate to determine the legal nature of the exercise period by assessing whether it corresponds to the extinctive prescription or abandonment in light of the explicit wording of the agreement, the circumstances of the agreement, the purpose intended through the formative right, and the interests of the parties and third parties involved. In making such a determination, the presence of an explicit and specific agreement on the exercise period of the formative right, or whether the occurrence of the formative right is based on objective facts or subjective behaviors/the breach of obligations, and other criteria can be considered. However, adopting such an approach may lead to some ambiguity in determining the legal nature of the exercise period for the formative right based on agreements in individual cases, raising concerns about legal uncertainty for contracting parties. Therefore establishing clearer and more specific criteria for a distinction based on empirical analysis of various cases involving the formative right under contracts may become a future task for further examination and research.