국제적 기업인수계약의 준거법을 다룬 하급심판결에 대한 평석

다국어 초록 (Multilingual Abstract)

In this case, the Plaintiff (a Korean company) entered into a share purchase agreement (“Agreement”) with the Defendant (a Korean) whereunder the Plaintiff sold the Defendant its shares in a Vietnamese company with limited liability and obtained the investment permit required under the laws of Vietnam. Thereafter, the Plaintiff filed a suit before a Korean court against the Defendant seeking recovery of the shares arguing that the Agreement was null and void. The Parties to the Agreement, namely the Plaintiff and the Defendant, did not expressly select the law applicable to the Agreement, and the Plaintiff has not obtained a special resolution of the Shareholders’ meeting of the Plaintiff required under the then current Commercial Code of Korea. This case deserves attention in two respects: first, it deals with the objective governing law of an international M&A agreement (share purchase agreement), and second, the court in this case expressly held that the provisions of the Commercial Code of Korea requiring a special resolution of the Shareholders’ meeting of the Plaintiff were internationally mandatory rules in that they should be applicable even when the law applicable to the Agreement is Vietnamese law (assuming that this was the case). This is a rare case in which a Korean court expressly declared that certain provisions of Korean law are internationally mandatory rules. First, the author thinks highly of the decision of the Seoul Appellate Court (“Court”) in that it has clearly determined the objective governing law of the Agreement and the law applicable to the unjust enrichment. However, in determining the objective governing law of the Agreement, the Court has violated Article 26 of the Private International Law Act (“PILA”) in that it has not applied Article 26(2) of the PILA which sets forth the rebuttable presumption based upon characteristic performance. Second, the Court’s holding to the effect that the Agreement was null and void due to the lack of a special resolution of the Shareholders’ meeting of the Plaintiff is also correct. However, the grounds upon which the Court based its conclusion cannot be justified. The provisions of the Commercial Code are applicable to the case at hand not because they are internationally mandatory rules, but because they are part of the lex societatis, which is a part of Korean law that is applicable to the Plaintiff as a Korean company regarding the company law issues, regardless of the fact that the Agreement is governed by Vietnamese law.