주권발행 전 주식양도에 있어서의 주주권 확정과 이중양수인 상호간의 우열관계 - 대법원 2016. 3. 24. 선고 2015다71795 판결 -

Abstract

The Commercial Code Article 335 (Transferability of Shares) (3) says that any transfer of shares made before the issuance of share certificates shall have no effect against the company: Provided, That this shall not apply where six months have passed from the date of the establishment of the company or the date of the payment of the subscription price for new shares. Prior to the issuance of share certificates, shareholders can transfer their shares if six months have passed from the date of the establishment of the company or the date of the payment of the subscription price for new shares, by transfer way of nominative claim of the Civil Act. The Civil Act Article 450 is stipulated about requisite for setting up assignment of nominative claim against obligor: (1) The assignment of a nominative claim cannot be set up against the obligor or any other third person, unless the assigner has given notice thereof to obligor or the obligor has consented thereto. (2) The notice or consent mentioned in the preceding paragraph cannot be set up against a third person other than the obligor, unless it is put in writing with a certified fixed date. The Korean Supreme Court ruled that share transferee can request the company to transfer of title and name in testimony of his own right, where six months have passed from the date of the establishment of the company. And in share's dual transfer case, priority between first transferee and second transferee is given in order to arrive at document arrival if it is put in writing with a certified fixed date. This comment say that the Supreme Court's ruling is reasonable and thus acceptable in the perspective of the protection of share transferee where share is transferred without a share certificate of balanced perspective concerning stable interests relationship among transferer, (first․second) transferees, the issuing company.