대법원 2015다248342 전원합의체 판결이 미친 영향 -사실상의 1인회사 및 명의개서와 관련하여

Abstract

The general meeting of shareholders, as a necessary permanent organization consisting of shareholders, often referred to as the highest decision-making organization of a stock company. Therefore, who is eligible to exercise voting rights at the general meeting of shareholders is a very important issue in relation to a resolution of a general meeting of shareholders. Supreme Court en banc Decision decided March 23, 2017, 2015Da248342 (hereinafter “2017 Decision”) left room for special circumstances but declared a principle that the exercise of shareholder rights to the company should conform to the register of shareholders and the company is also bound by this. The above decision has caused a huge impact on past practice, which has been affirmative of the exercise of shareholder rights by de facto shareholders (i.e., shareholders in fact). This paper introduced decisions rendered by the Supreme Court after the 2017 Decision and reviewed the following judgements of the lower courts focusing on whether the rulings on standards of determining “de facto one man company” would be changed or not, and what a “legitimate shareholder register rectification” would be. The legal principles of one man company are irrelevant to the 2017 Decision. But the attitude of the existing precedents of the Supreme Court, which has extended it to “de facto one man company on the premise that the existence of de facto shareholders is admitted, is no longer likely to be maintained. The lower courts also determine whether the company is a one man company based on the register of shareholders. According to the 2017 Decision, in the case where the company, however, unreasonably delays or refuses to rectify the register of shareholders, the unregistered de facto shareholder may still exercise its rights, such as filing a lawsuit against the resolutions of the general meeting of shareholders or applying for inspecting accounting books and records. However, it is difficult to conclude that all refusal of the company is unreasonable denial of shareholder register rectification until the ruling is confirmed in the lawsuit. This may be determined differently depending on the specific facts. However, unreasonable denial of shareholder register rectification is a concept established on the premise of “claim,” and thus with respect to the resolution of the general meeting of the company’s shareholders prior to the claim, it goes without saying that shareholders cannot exercise their rights. As it became important to be a de jure shareholder (i.e., registered shareholder) following the 2017 Decision, judgment on what a legitimate shareholder register is seems now more important. We are concerned about the current situation in which there are no legal regulations on the preparation and management of the register of shareholders. However, it is expected that the exercising shareholder rights will be simpler and more predictable after the 2017 Decision.