주주가 상환청구권을 갖는 상환주식의 실효시기 - 대법원 2020. 4. 9. 선고 2017다251564 판결 및 관련 쟁점 검토 -

Abstract

This paper examines the issues of the ruling and related issues of the Supreme Court 2017Da251564 decided April 9, 2020 dealing with redeemable shares with which the shareholders may demand redemption of shares against the company pursuant to Article 345 (3) of the Revised Commercial Act of 2011. In this case, if the shareholder exercised the right to demand redemption of shares, but there was a dispute over the redemption price, it was mainly argued whether the status of the shareholder was retained or if the shareholder's position was lost and converted into a creditor. The key issue is the invalidation time of the redeemable stocks in which shareholders have the redemption right. This paper takes the position that shareholders lose their status at the time when the company has paid the full amount of redemption, rather than losing the status of a shareholder just by exercising redemption right. It is considered that this view not only conforms to the nature of redeemable shares with ʻredemptionʼ as a core factor, but it also satisfies the purpose of the law that formalizes the loss of shareholder rights based on shares. This paper takes different approach comparing to the academic and court viewpoint of ① grasping the right to claim redemption as the formative right(Gestaltungrecht), ② interpreting the redeemable shares in the same manner as convertible shares, ③ treating redemption of redeemable shares as one of acquisition and retirement of treasury stocks, and ④ keeping pace with the Japanese legislation and interpretation of ʻstocks with claims to acquireʼ. Based on these basic perspectives, the invalidation time of redeemable stocks and related issues are analyzed, divided into three stages: ① stage of redemption claim, ② stage of redemption (the stage at which the redeemable shares become invalid), and ③ stage of subsequent procedures.