협동조합 설립 및 운영상의 법률문제

Abstract

Since the enactment of the Framework Act on Cooperatives in December 2012, a total of 7,435 cooperatives have been established as of June 30, 2015. A “cooperative” refers to a business organization established to carry on a joint undertaking, and bears some similarities to a company, partnership, social enterprise and agricultural corporation(agricultural association, agricultural company). This study examined the difference between cooperatives and comparable legal entities, legal issues to be reflected in the articles of association or bylaws for a cooperative to become a self-supportive business organization, and the validity of such items in case of conflict with the Framework Act on Cooperatives. This study can be summarized as follows. The operational funds of cooperatives will be financed by contributions. Since the lack of operational funds interferes with business purposes, the articles of association impose suspension of defaulter’s rights such as voting or dividend in order to prevent failure to pay contributions. While members who have failed to pay contributions can be expelled, restricting their voting rights on resolution is impossible without expulsion. Forfeiture of the defaulting party’s share in cooperatives is null and void because the Framework Act on Cooperatives grants each member one vote on a resolution or election, irrespective of the number of his/her contribution units. In the case of transfer of shares, companies may restrict share transfer by the articles of incorporation. However, shareholders' agreements on share transfer restrictions shall have no effect against the company, but come into effect only between the parties, so long as their purposes are legal and not contrary to public policy. For cooperatives, on the other hand, the transfer of the status as a member or the transfer of the share of a member is only valid upon resolution by the general assembly. If unapproved by the general assembly, the recovery of contributions becomes difficult, and this eventually shall not lead to the withdrawal of members. While this may be regarded as a violation of the cooperatives’ basic principle of freedom to withdraw, it should be described as a restriction on withdrawal instead of a prohibition. If shares are transferred to a third party without resolution by the general assembly, certain conflicts with existing members may arise when the third party files an application for membership. Restrictions on share transfer are thus valid as long as the resolutions of the general assembly are not outright prohibition or per se unreasonable. In the event of a member’s death, given the intuitu personae character (intuitu personae means “in consideration of the person,” as in a non-transferable personal performance contract) of membership and possible clashes with existing members that may result from the succession of status, membership should only be transferred to one who meets the objectives of establishment of the cooperative and its characteristics, as stipulated by articles of association.