합작 계약의 주요 쟁점 - 최근의 회사법 개정 사항을 중심으로

Abstract

For inbound cross-border investments, which are fairly common in form of joint venture, the joint venture agreement, or shareholders agreement, directly controls the content and the governance structure of the joint venture company. The joint venture agreement is subject to the Korean Commercial Code (“KCC”) and has a direct effect on the investors’ interests. As such, with the major revision of the KCC on April 15, 2012, it is necessary to review the terms of the joint venture agreements from the perspective of the revised KCC. With the revision of the KCC, new consideration is required with regards to most of the major terms of the joint venture agreement, including the form of the joint venture company, capital structure, issues regarding transfer of shares, the governance structure of the joint venture company, the conflicts of interests between the joint venture company and its director, issues regarding accounting and financial affairs, and the limitation of liability of the director, etc. Under the revised KCC, new terms and arrangements that could not previously be included in the Joint Venture Agreement can now be stipulated for, allowing the parties to more accurately reflect their intentions in the Joint Venture Agreement. On the other hand, items that were not previously at issue are now required to be fully considered prior to their inclusion in the Joint Venture Agreement in consideration of the revised KCC. This study seeks to allow the parties to more accurately reflect their intentions in executing the joint venture agreement through the application of the provisions of the revised KCC and to provide parties with a method to achieve the purpose of the joint venture in an efficient manner, as an accurate understanding of the joint venture agreement and the revised KCC as well as the practical application of such knowledge are essential in achieving such purpose.