회사형 조인트벤처(Corporate joint venture)에 있어서 주주협정에 관한 연구

Abstract

Recently, many forms of joint ventures have been created between corporations, between, individuals, and between corporations and individuals for common purposes. A joint venture refers to as a legal relationship where two or more investors invest, distribute profit, and share losses in order to conduct a business. There are many forms of joint ventures, which may be divided into contractual, partnership, and corporate joint ventures, depending on their legal characteristics. A contractual joint venture is different from a joint venture partnership (JVP) in that it conducts a joint venture business for a mutual benefit without forming a separate legal vehicle or agent for rights and obligations. Each partner is obliged to take liability with their assets for debts and liability involved in their partnership business defined in the partnership agreement. As long as there are no contradictory agreements, the continuation of the partnership is decided upon the continuing participation of the partners, which is why it is probably the joint venture with the weakest binding power. A joint venture partnership is a partnership entity in the form of a joint enterprise consisting of general partner who have unlimited liability for the debts of the partnership and limited partner whose liability is limited to his investment in the partnership. Although the limited partners have liability that’s only within the amount of their investment, they cannot participate in business management. On the other hand, a corporate joint venture has various tax benefits compared to the partner association in civil law, and has advantages in the fact that shareholders have a limited liability within the scope of the stocks in which they have invested in. Also, in closed companies with only a small number of shareholders, in order to enforce the relationship between shareholders, voting rights, stock transfer methods, dispute settlement methods and the director’s power are determined by the agreement to operate and control the company jointly. Furthermore, in order to enforce the content of the shareholders’ agreement within the corporate system, contents such as, shifting the rights of the director to the shareholders, preserving the responsibility of the director, restrictions on the transfer of shares for maintenance of shareholders’ agreement, the right of first refusal regarding withdrawn or expelled shareholders, sanctions on the violator of the shareholders’ agreement, dissolution of a company due to the cancellation of the shareholders agreement, is included. The realization of the shareholders’ agreement must take place through the management system of the corporation law, but its effect can become a problem when the shareholders’ agreement comes in conflict with the corporation law concerning the expulsion of shareholders, restrictions on the transfer of shares, remuneration of directors, and the dismissal of directors. Also, the major shareholders’ corporate management by the shareholders’ agreement can be recognized as an act that damages the third party with different interests in the company such as minority shareholders and creditors. Furthermore, when the major shareholders take advantage of the company only to take real profits by evading obligations under the corporate law, the shareholders’ agreement can cause ‘a corporation’s abuse’ or ‘a company swindle’. Therefore, regulations should be made concerning this issue. Western countries are revising the corporate law in a way that will enhance the shareholders’ participation and remedies in corporate manage- ment and control. In contrast, Korea still seems passive in guaranteeing the shareholders’ participation in management and control, on the grounds that these hinder management stability, although the country has already enhanced the rights of minority shareholders and the appraisal rights, etc. Despite shareholders’ allowance of participation in company management and the control being partly institutionalized, there should still be more active revisions to shift the corporate law system toward shareholders, thus following the global trend of guaranteeing and enhancing the management participation of shareholders. Although many forms of joint ventures will be established in joint enterprises in the future, there are not many studies that have been conducted in Korea yet. Hopefully in the future, there will be more studies conducted on this subject.