株主들간 契約의 內容과 效力에 관한 硏究 － 英·美를 중심으로 우리나라와 比較法的 觀點에서 － (Study on the Contents and the Validity of the Shareholders’ Agreement－ Comparative Perspective on Anglo-American Law with Korean Law－)

서지정보

· 발행기관 : 한국상사법학회
· 수록지 정보 : 상사법연구 / 26권 / 4호 / 179 ~ 229페이지
· 저자명 : 진홍기

초록

Recently Korean Companies have expanded their size and capacity by mergers and acquisitions as well as establishing the joint venture companies internally and externally. Henceforth, for a buyer to acquire the target company, a buyout fund should be made available. In regards to this issue, currently through the application of Act on Business of Operating Indirect Investment and Assets to the legal market, this sort of buyout fund solemnly created for assisting acquisition of a company, which belongs to an area of Private Equity Fund system, can be established. This fund contributes towards the acquisition as a strategic investor. They invariably enter into shareholders’ agreement in order for them to allocate powers for their interests and for the minority party to take assurance that their rights be protected as investors.
Shareholders’ agreement functions as a tool which modifies and varies the article of association or the bylaw, because the company law and the article of association may not cover all the terms and the conditions which the shareholders wish to provide and they need to make arrangement inter se to protect their close enterprise-relationship from the intervention of outsiders. Even though voting trusts, irrevocable proxies, and management agreement function as the vehicle to amend the articles of associations but are distinctly different from the shareholders’ agreement.
Shareholders’ agreement takes a variety of forms and contents, such as rights and duties of participants, transfer of shares, the composition of the board, increase of the capital, the exercise of corporate power to borrow, and the right of a shareholder to be bought, which may differ according to the shareholders’ objective of controlling and cooperation between them.
In this thesis, in light of a comparative study on Anglo-American law with Korean Law in regards to the forms and contents of the shareholders’ agreement, I managed to investigate the concept and the validity of the specific provision in the shareholders’ agreement, in other words, the various terms and conditions restricting on the capacity of the boards of directors and obliging not only the company to act in terms of capital, management, but also the shareholders’ right to vote for directors.
The validity of the shareholders’ agreement between the shareholders and the company who is not a party to the agreement may be argued that it has no effect on the company due to privity of knowledge. However, the shareholders’ agreement not only binds them but also invites the contentious argument about the validity of specific provision.
In general, shareholders’ agreements are not sustained by the courts when the contracts were inspired by fraud that a public policy requires that it be given no effect. When the agreements are concerned about the legal capacity of directors, because of a conflict with the principle that the corporate directors are obligated with fiduciary duties toward the corporation, the courts would be content to declare its invalidity. In addition, on the basis that the holders of the majority of the shares of stock in a corporation may control its management and any agreement purporting to.
Furthermore, the agreements entered into with a view for modification or fettering the article of association in relation to transfer of shares, fiduciary duties of directors, or to create a sterilized boards of directors, are struck down by the courts.
Commentator opines that in the company law there are the facilitative and the mandatory provisions, such as public offerings of securities. The dual character of the company law is undoubtedly highly debatable over the proper construction and application of the shareholders’ agreement toward a recommendable and acceptable resolution. The regulatory rules in the company law are the public policy such as investor protection, and reduction of uncertainty. Furthermore, it is needed for the court to contextualize the shareholders’ agreement and find the proper solution in light of dual characteristics of the company law.

영어초록

Recently Korean Companies have expanded their size and capacity by mergers and acquisitions as well as establishing the joint venture companies internally and externally. Henceforth, for a buyer to acquire the target company, a buyout fund should be made available. In regards to this issue, currently through the application of Act on Business of Operating Indirect Investment and Assets to the legal market, this sort of buyout fund solemnly created for assisting acquisition of a company, which belongs to an area of Private Equity Fund system, can be established. This fund contributes towards the acquisition as a strategic investor. They invariably enter into shareholders’ agreement in order for them to allocate powers for their interests and for the minority party to take assurance that their rights be protected as investors.
Shareholders’ agreement functions as a tool which modifies and varies the article of association or the bylaw, because the company law and the article of association may not cover all the terms and the conditions which the shareholders wish to provide and they need to make arrangement inter se to protect their close enterprise-relationship from the intervention of outsiders. Even though voting trusts, irrevocable proxies, and management agreement function as the vehicle to amend the articles of associations but are distinctly different from the shareholders’ agreement.
Shareholders’ agreement takes a variety of forms and contents, such as rights and duties of participants, transfer of shares, the composition of the board, increase of the capital, the exercise of corporate power to borrow, and the right of a shareholder to be bought, which may differ according to the shareholders’ objective of controlling and cooperation between them.
In this thesis, in light of a comparative study on Anglo-American law with Korean Law in regards to the forms and contents of the shareholders’ agreement, I managed to investigate the concept and the validity of the specific provision in the shareholders’ agreement, in other words, the various terms and conditions restricting on the capacity of the boards of directors and obliging not only the company to act in terms of capital, management, but also the shareholders’ right to vote for directors.
The validity of the shareholders’ agreement between the shareholders and the company who is not a party to the agreement may be argued that it has no effect on the company due to privity of knowledge. However, the shareholders’ agreement not only binds them but also invites the contentious argument about the validity of specific provision.
In general, shareholders’ agreements are not sustained by the courts when the contracts were inspired by fraud that a public policy requires that it be given no effect. When the agreements are concerned about the legal capacity of directors, because of a conflict with the principle that the corporate directors are obligated with fiduciary duties toward the corporation, the courts would be content to declare its invalidity. In addition, on the basis that the holders of the majority of the shares of stock in a corporation may control its management and any agreement purporting to.
Furthermore, the agreements entered into with a view for modification or fettering the article of association in relation to transfer of shares, fiduciary duties of directors, or to create a sterilized boards of directors, are struck down by the courts.
Commentator opines that in the company law there are the facilitative and the mandatory provisions, such as public offerings of securities. The dual character of the company law is undoubtedly highly debatable over the proper construction and application of the shareholders’ agreement toward a recommendable and acceptable resolution. The regulatory rules in the company law are the public policy such as investor protection, and reduction of uncertainty. Furthermore, it is needed for the court to contextualize the shareholders’ agreement and find the proper solution in light of dual characteristics of the company law.

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