상법상 다중대표소송제도의 도입에 관한 연구

Abstract

Because of the Park Geun-hye and Choi Soon-sil gate, the voice of the Chaebol reforms were increased, one such example is the introduction of a Multiple Derivative Suits. Before the confirming the Multiple Derivative Suits, see the Shareholder Derivative Suits, the current Shareholder Derivative Suits under the commercial law has the limitations in our business group. This leads to the necessity of Multiple Derivative Suits due to problems of the circular fund structure, securing of responsibility for management of directors, strengthening of holding company, review of the transparency of management structure and the gap between real-ownership and management. The multiple derivative suits mean a lawsuit for the calling to account to the directors of the subsidiary company who did illegal act on behalf of the subsidiary company. Through such measures, the shareholders can recover the losses, and pursuing the private interests of the controlling shareholder controlling the subsidiary management. Like this, it is the restraint device. Following the specificity of the Korean corporate structure, the multiple derivative suits can be applied to both circular shareholding and holding company, also it can be the measure to protect minority shareholders. However, still there are pros and cons theory about the multiple derivative suits, I standing for the pros. About the legal theory, there are co-domination, compensation and restraint, denial of corporation, limited recognition, and trust relationship theory. Etc. About the multiple derivative suits, major foreign countries can confirm by written law or legal precedent. The United States has been recognized in legal precedents for more than a century, and the starting point is Brown v. Tenney judgment. Japan has been in force since April 2015, and lawsuits are permitted only in relationship of complete Mother and Son Company. Britain and France have not been legislated, but they have been granted the multiple derivative suits by legal precedent. Hong Kong has allowed the multiple derivative suits from 2014 to today, Germany is allowed by starting the ITT case. In Canada and New Zealand, about the multiple derivative suits, the law court decide the permission of the sue with the similar case. There is a need to provide a rational solution that matches the structure of the domestic enterprise by referring to foreign legislation. In Korea, about the multiple derivative suits in 2003, the Supreme Court in 2004 over the ruling this and finally it was stopped. However, the revision of the Ministry of Justice in 2013 and the revision of the National Assembly by 2016 and until now have been submitted to the National Assembly including the details of the multiple derivative suits. Therefore, we made comparisons and analyze of submitted amendments and made in-depth confirmation of the actual legislation such as the standing to sue, defendant, procedure of litigation, and effect of judgment. However, if multiple derivative suits are introduced based on recent statistical studies, about the scope of the company with the standing to sue, based on data from the Fair Trade Commission's corporate stake in 2016, the statistics on the number of companies classified as 100%, 50%, and 30% are quantified. In addition, the following comments are made on the outbreak of lawsuits that are the most worrisome among the opposing opinions of the multiple derivative suits. And about the minority shareholder right, refers to the sole shareholder rights of the United States and adopt this, so it can set the holding period and the standard of the stock. It is a method to prove malice of plaintiff by defendant director with apply the shareholder derivative suits through provision of security and give the regular security to plaintiff shareholders, and give the defense right to defendant director. The acceptance of the retrial is the opinion that the retrial of the multiple derivative suits is needed by interest between company and director. And next, it is the opinion that applying the principles of management judgment, even if a company suffers a loss, if the judgment of the director satisfies the sincerity and rationality, set the limit of the director's responsibility and assists the manager in exercising the ability. Finally, it is correct to support the multiple derivative suits by securing the independence of the management by the introduction of special litigation committee. Legislation of the multiple derivative suits is the system of the corporate structure and minority shareholder, so about its application, the practical and potential application in application is needed. The contents of this legislation will protect the interests of the subsidiary shareholders and further damage to the parent company and it will be a good way to transparency of the management of the directors and restoration of the enterprise.