동반매도청구권(Drag-Along Right)에 대한 연구 - 대법원 2021. 1. 14. 선고 2018다223054 판결을 중심으로 -

Abstract

This study examines the major issues of each instance judgment including the fact relevance, claims by the persons directly involved, and lower instance in relation to Decision2018Da223054 decided by the Supreme Court on January 14th, 2021, which is the first case covering the functions and meaning of the drag-along right and the conditions where the drag-along right shall be exercised in shareholders’ agreements with a focus on the drag-along right. Since the court’s judgment on the major issues was further concretized or the opposite conclusion was reached as going through the trials at the Appeal Court and Supreme Court, respectively, there is a significance of discussion in identifying all the judgments by each instance. Then, conditions for the drag-along right and issues with regard to achieving the conditions are reviewed from the perspective of interpretation more thoroughly, and a discussion on how to protect minor shareholders’ rights is conducted. The drag-along right is the one generated in the shareholders’ agreement, which is a completely private settlement, so the court’s approving validity of the right is significant in that it sets the stage for the future utilization of its clauses, suggests the direction for practical affairs, and gives shape to relevant legal principles. This judgment suggests a great deal in that the functions and meaning of this right were identified and a specific direction on the scope of cooperative obligation at the exercise of this right was reached. Although it can be seen that the Supreme Court did not explicitly present the criteria for the exercise of the drag-along right, this part will eventually have to be left to individuals to make the contract terms and conditions clearer in shareholders’ agreements. However, more active discussions will be needed on whether minority shareholders can substantially achieve the purpose - securing the return on investment - that they have pursued through the clauses of drag-along right. This is because if major shareholders refuse to cooperate from the beginning of the sale and the sale procedure is not advanced, as in the case of the subject matter, minority shareholders will not be able to gain any economic benefit from their shares. Details on how to urge the sale procedure, whether the selling price and subject can be specified within at least a narrow range and the expectant right of fulfillment of condition can be secured, and the effects of rights and obligation of the persons directly involved and their failure in duty at each stage of exercising the drag-along right in the future should be practically established further.