주식양도제한약정의 효력 및 그 약정에 위반한 주식양도행위에 따른 법률관계 -대법원 2022. 3. 31. 선고 2019다274639 판결에 대한 평석을 포함하여

초록

The free transferability of shares is an essential feature of joint stock companies. However, it is sometimes necessary that shareholders agree with themselves to limit the transferability of shares for business reasons. In 2000, the Korea supreme court rendered a seminal ruling with regard to the validity of an agreement to restrict transfer of shares. According to the ruling, the agreement to prohibit transfer of shares for five years is not valid for the reason that it completely prevents the collection of invested capital by shareholders. In addition, the requirement that a shareholder should obtain consent from all the other shareholders in order to transfer its own shares was held to be invalid by the Supreme Court. The conclusion was predicated upon the reasoning that the requirement is contradictory to Article 335 of the Korea Commercial Code which statutorily limits the means for restricting transfer of shares and prevents the transfer of shares remarkably. However, the ruling has been criticized for the failure to distinguish the restriction of share transfer by shareholder agreements from the restriction of share transfer by articles of incorporation. The contractual validity of the agreement to restrict transfer of shares does not need to be determined based on Article 335 of the Korea Commercial Code which intends to limit the means for restricting transfer of shares with the effect on the company issuing the shares. The agreement to restrict transfer of shares should be valid if it does not completely prevent the collection of invested capital. In this sense, the ruling rendered by the Supreme Court in 2022 that the agreement to prohibit transfer of shares for around 13 years without consent from all the other shareholders is valid can be said to be sound.

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