타인명의 주식인수 시 주주결정에 관한 새로운 해석론

Abstract

In contract under the name of another person, it is characteristic that the actualcontracting party acts for himself and wants legal effects to arise for himself,while another person whose name is used(nominee) looks like to be the legal partyof the contract. It must be decided by the way of interpretation of the contract, who becomethe party in the contract under another person's name. If there is consensusbetween both parties about who is a party, the actual contractor or the nominee isthe party. The fact that nominee whose name as contracting party is used, has noinfluence on this conclusion. The discord between the actual contactor and thenominee in the contract is just falsa demonstratio, and it has no legal effects ondeciding the party. In the case of no consensus about the party, the party is determined by thenormative interpretation under consideration of circumstances. Above all theviewpoints or interests of the counter party as reasonable person is to be taken intoconsideration for the normative interpretation. The nominee is the party, if the counter party as reasonable person regards theidentity of the contracting party important and may consider the nominee in thecontract as his partner. On the contrary, the actual contractor is the party if thecontract qualifies itself as so called contract to whom it may concern(Geschäft fürden, den es angeht), or just the individuality of the actual contractor is crucial toconclude the contract. If there is absent in consensus about the party, the normative interpretation isrequired to decide the party of the contract for share subscription in terms of § 332 Korean Commercial Code or share acquisition under the name of another(nominee)whose name is registered in the shareholder register. In these cases the party inrelation to the corporation is in principle the nominee. In such contracts, theidentity of the party is relevant for the corporation as reasonable counter party. The corporation considers the nominee as his party, and the massive character ofthe contracts requires to regard not the actual contractor who is very burdensomeor almost impossible for the corporation to determine, but the nominee as partywho is on the contrary very simply and obviously to determine. So, it is time to change the opinion of both the Korean Supreme Court decisionand the dominant opinion which until today regard the actual contractor as partyand shareholder of the corporation. In principle, this conclusion lies in line with therecent decision of the Korean Supreme Court to determine the contracting partyconcerning the deposit contract between the financial institute and the moneydepositor(contributor) not using his own name, but under the name of anotherperson(nominee). The Korean Supreme Court has ruled by the way of theinterpretation of the contract that in principle the account holder is not thecontributor, but the nominee. According to the decision, only in an extreme casewhere between the both parties an explicit agreement to regard the contributor asaccount holder exists, and the existence of such an agreement is for example withhelp of documentation clearly provable is allowed to consider the contributor asaccount holder. Despite the above result, to see the nominee as party, it is desirable to introducean article which regulates only who is registered in the shareholder register isconsidered to be shareholder. Such an article guarantees the corporation securityand standard for the process of the massive administrations related to shareholders.