주주의 출자손실에 대한 회사의 보전약정의 효력

Abstract

A person who subscribes for the new shares of a corporation becomes the shareholder of the corporation. Under the Korean Commercial Code, unlike a partner in a partnership agreement, a shareholder is not entitled to claim the money she invested at the time of original issuance of shares. Thus, shareholders of a corporation usually sell their shares to other investors to recover the investment money, and the shareholders are responsible for their own investment and self-directed trading. What if a person promises to compensate for all or part of losses that an investor may sustain, or promises an investor in advance to guarantee a certain amount in returns? A promise by a private party to commit any of the mentioned acts may be valid and enforced by the court. Under the Financial Investment Services and Capital Markets Act, however, a financial investment business entity is not allowed to promise to compensate for losses that an investor may sustain, or to promise an investor in advance to guarantee a certain amount in returns. The Korean Supreme Court ruled that the promise by a financial investment business entity to compensate for losses is not valid. If a corporation promises an investor in advance to compensate for losses that she may sustain in connection with the subscription for the new shares, is the corporation`s promise valid? For example, when no investors want to subscribe for the new shares due to the shaky business of the issuing corporation, the corporation may promise to compensate for losses that investors may sustain in connection with the subscription. Korean Supreme Court Decision of June 28, 2007, 2006DA38161 dealt with this issue of the compensation agreement between a corporation and share subscribers, which is examined in this Article. Following the Part I, the facts and the summary of the ruling of the case are introduced in Part II. Part III examines the issue of the equal treatment between shareholders, and Part IV analyzes the issue of stock repurchases and the problem of disguised capital inflows. Part V discusses the validity of the compensation agreement and addresses the possibility of unjust enrichment. Part VI reviews the issues of torts and damages. Finally, Part VII summarizes the preceding discussions.