주주명부의 효력에 관한 법리의 재해석 - 대법원 2017.3.23. 선고 2015다248342 전원합의체판결에 따른 법리를 기초로 -

Abstract

A decision by the Supreme Court in 2017(“the related decision”) sparked fierce discussions that were rare in corporate legislation. The related decision was "The Supreme Court sentenced on March 23, 2017, 2015da248342, and the key issue in the case was who would be eligible to exercise shareholder rights if the shareholders on the register of shareholders were different from the real shareholders. In conclusion, the related decision changed the position of acknowledging the exercise of real shareholders' rights that had been maintained for a long time since the Supreme Court precedent in 1975, declaring that only legitimately registered shareholders had the right to exercise shareholders' rights. Of course, the opinions of the Supreme Court Justices of the related decision were also divided into majority opinion, supplementary opinion, and even separate opinions, suggesting that there was a lot of controversy until the conclusion. Moreover, in the academic world, where the conventional view was from the standpoint of practical theory, the impact of the related decision was of course great, and it is hard to deny that it was a critical atmosphere. In particular, when reviewing the critical views raised on the related decision, the main issue is that the exercise of shareholder rights is dealt with formally and uniformly based solely on the entry of the shareholder registry, and secondly, it did not take into account the reality of our small corporation system. In addition, the related decision can be concentrated on criticism that it is a judgment that exceeds the limit of interpretation of the actual law as a legal formation by a judge made without a prestigious legal basis. However, more than five years have already passed since the related decision was made, and the Supreme Court's position in the related decision is clearly reaffirmed in the subsequent decisions. In view of this, it is difficult to expect the Supreme Court's position to shift to the conventional one or retreat to a more relaxed position, and now more future-oriented concerns and discussions will be needed rather than arguments for and against the outcome of the related decision. In particular, the related decision is very meaningful in that it has served as a cornerstone for reorganizing the register of shareholders system, which has been degenerated into a nominal system without taking advantage of its institutional purpose, as an objective and effective criterion for establishing all legal relations related to stocks more clearly and transparently.