주주명부 기재의 효력

Abstract

It can be pointed that about the relation between corporate and a registered shareholder or equitable shareholder which one has priority, the supreme court has changed their position recently. According to the judgement sentenced recently, only the registered shareholder can be treated as shareholder by corporate even though the corporate knew the registered shareholder lent his name to the equitable shareholder. The supreme court’s position is that, in relation to a corporate, only registered shareholder can exercise their shareholder’s right and even the corporate itself may not allow real shareholder to exercise their shareholder right. It means that the register is binding not only shareholders but also a corporate. The court position is contrary to the express provisions of the ACT that afford corporate to treat the registered shareholder to exercise shareholder rights, but does not treat it a duty to follow contents of the transfer book of shareholders. As to the effectiveness of share transfer, Article 337, Paragraph 1 of the ACT merely provides that the transfer of shares will not be effective against the company if the name and address of the transferee is not registered in the share registry. Along to the provision Article 337 of Korean Commercial Act, the corporate should be construed that they can recognize the equitable shareholder as the legal shareholder who can exercise a shareholder’s right. It can be also pointed that the supreme court’s position is disregarding the reality of corporate that many numbers of shareholders are registered shareholder who lent their name to the equitable shareholder. And to give the real shareholder to exercise his right as shareholder can be regarded justice in civil relationship, So to give prior right an equitable shareholder rather than a register shareholder are more proper under the corporate relation. In conclusion, the conclusion sentenced the supreme court is contrary to the interpretation of the provision ACT. In order to set up suitable position between corporate and shareholder, not the court but the amendment of KACT is recommended. In case that where a share is transferred without delivery of share certificate, there is a possibility of double-transfer. The rights and obligations between the double transferee should be determined pursuant to the provisions of the Civil Code related to the transfer of claims. The supreme court held that when both transferees did not comply with the requirements of the Civil Code on claim transfer, neither party will prevail over the other party in connection with the transfer. It also held that corporate is obligated to treat the registered acquirer as a shareholder. But, it can also occur when the corporate knew the double transfer and one party complied with the requirements of the Civil Code on claim transfer but registered shareholder is the other party. In that case, the corporate may be fully aware of the prevailing party, even the corporate should follow the register book even though he knew the prevailing party? This supreme case do not mention about this situation, I thing that the corporate should treat the party as shareholder who complied with the requirements of the Civil Code on claim transfer nevertheless the register.