명의개서와 주주권 행사에 관한 소고

Abstract

According to Article 337 of Korean Commercial Code, even if anyone who actually holds stocks, can not assert the stockholders rights to the company, unless he /or she enter his/ or her name and address on the shareholders’ list. In this regard it has been long time quarrel about whether the so-called real shareholders, who have been not entered in the register of shareholders could be granted shareholder’s rights by a company. However, the Supreme Court changed its existing view in 2017. Even after the Supreme Court's ruling, even though the company actually knew who was the real shareholder, only shareholders listed on the shareholder list could exercise shareholder rights. The Korean Supreme Court said that the shareholders' list system goes beyond just the company's convenience in handling of the affairs and because the system about the change of name in the shareholders' list affects the legal relationship among the various stakeholders. In other words, it affects not only between the company and shareholders, but also the legal relationship between shareholders and third parties or between the company and third parties. According to Article 337 ① of Korean Commercial Code the so-called real shareholders cannot claim shareholder rights against the company. It means that formal shareholders can claim shareholder rights for the company, and does not mean that the company cannot allow the exercise of the rights of the real shareholders. In other words, it does not means that this regulate not only the legal relation between the company and its shareholders but also between the company and third parties. This means that the regulation only defines the relationship between the company and its shareholders. The sentence ‘can not assert’ in the law means that the direct oppenent party cannot claim the legal effects. In general, when legislators want to apply a rule to a third party, they make the third party clear. Comparatively exemplified German law imposes the transferee of the stock to enter his /or her name in the shareholders’ list and treats only this person as shareholder. Thus it is unreasonable to extend the effect of the change of name in the shareholders’ list to third parties because the Korean law does not force the change of name in the shareholders’ list. In conclusion, the purpose of the shareholders' list system or the system of transfer of titles is not very different, and the two systems are provided for the convenience of the company in handling the affairs. And Article 337 ① regulate only the legal relationship between the company and its shareholders. Thus, the company can allow real shareholders whom the company know as shareholder to exercise their shareholders’ rights.