주식 명의신탁에 관한 연구

Abstract

A person may transact under the name of other person for various reasons: she might want to lessen tax burden, circumvent strict regulations or just prefer not to expose her for better negotiation. In order to regulate opaque or suspicious usage of other person’s name, the Korean legislations adopted two separate statutes on financial transactions or real estate transactions: under the Act on Real Name Financial Transactions and Guarantee of Secrecy, financial transactions should be made under real name, with a handful of exceptions; also the Act on the Registration of Real Estate under Actual Titleholder’s Name urges buyers or sellers of real estates to register their own names. When it comes to share transactions, however, the legislative sentiment is not so restrictive. Parties to such disguised deals may face heightened gift tax risk, but no direct ban was adopted by any statute. Hence a lot of shares owned under the name of other person in Korea. The goal of this paper is to explore the legal implications surrounding the shares whose nominal owners and beneficial owners are separated. Having analyzed around 70 Korean Supreme Court cases since 2014, the paper classifies share transactions under other person’s name into three groups. First, the creation of fake appearance through the registration on the shareholders list (Type 1). In Type 1, it is the beneficial owner to whom the shares legally belong. If the person whose name is appeared on the shareholders list sell the shares to 3rd party with bad faith, such sale and purchase shall be nullified. The only caveat is that the beneficial owner cannot exercise her shareholder rights toward the company till the shareholders list is revised (Art. 337 of the Korean Commercial Code). Second, acquisition of full legal entitlement by the shareholders on the list while leaving beneficial owner some economic interest (Type 2). In Type 2, the shares belong to the shareholders on the list and no legal rights are reserved to the person behind the scene. The latter may ask the former to keep the agreement which created the Type 2 and to follow her direction in exercising shareholders’ rights, but such asking has the effect in personam. The exercise of rights by shareholders on the ledger, ignoring such asking, would be still valid. Third, the separation of legal ownership (Type 3). It is not like a separation of ownership in title from ownership in equity under the Anglo-American trust law, but a jurisprudence unique to Korea. The shareholder on the list has legal ownership vis-à-vis third party or the company; the beneficial owner has legal ownership vis-à-vis the shareholder on the list. Traditional Korean jurisprudences have called this phenomenon “Myong-Ui-Sin-Tak” or Korean style trust of title name. As opposed to Type 1, a third party, whether with bad faith or good faith, may legally acquire full and valid ownership through a sale and purchase agreement with a shareholder on list under Type 3, even though the deal is against beneficial owner’s will. The findings from this research may be summarized as follows: (1) The legal implication of Type 3 should be revisited. The status of beneficial owner in Type 3 is very similar to that in Type 2: an ownership exercisable against only the shareholder on the list (Type 3) implies that the ownership has the effect in personam (Type 2). We may merge Type 3 concept into Type 2. (2) The Korean Supreme Court often failed to use exact terminology on cases containing separation of legal ownership. Under the Korean tax statutes, all of the three Types shall trigger strict gift tax. However, these broad applications should not be extended to non-tax cases and the difference of each Type, especially that of Type 1 and Type 2, should be clearly recognized.