주식양도담보의 효력

Abstract

Mortgage in the form of written assignment of shares may be considered assignment of shares, which emphasizes the formality, and it may be considered security of shares, which emphasizes the substance of the contract. These different perspectives lead to differences in the legal force of mortgage in the form of written assignment of shares. Fundamentally, it is the issue of whether to regard mortgage in the form of written assignment as trust ownership or real rights granted by way of security. Provisional Registration Security Act regards mortgage in the form of written assignment of shares as real rights granted by way of security and the recent case on mortgage in the form of written assignment in general also shows the change of stance from the conventional “transfer of trust ownership” theory to “real rights granted by way of security” theory. Stock transfer is the stockholder's way of public offering and has the opposing power against and the qualification-granting effect on the company of the transferee, causing a de facto change in ownership. Therefore, it is possible to apply the law in the case of mortgage in the form of written assignment of shares. In this regard, mortgage in the form of written assignment of shares, as a kind of real rights granted by way of security, has a characteristic of real rights granted by way of security, which means that the foreclosure is prohibited and the ownership of the shares cannot be acquired without certain clearing process by the creditor, even with the title transfer. This interpretation of the law better serves the intention of the contracting parties and the purpose of the law which is to protect the interest of the transferee. Since the creditor does not obtain the ownership of the shares, he or she obtains real rights granted by way of security. Therefore, the creditor has a right to distribution of profit but does not have a voting right. Also, the creditor does not have get an approval of the board of directors when signing a mortgage in the form of written assignment contract on the shares of a company that has a provision in the statute that says “the approval of the board of directors is required for a transfer of shares.” This is because mortgage in the form of written assignment of shares contract is interpreted as establishment of the security right, not a transfer of shares. However, the creditor must get an approval from the board of directors when disposing of his or her shares for exercising of right, as in the right of pledge of shares.