주주대표소송에 관한 연구

Abstract

【ABSTRACT】

A Study on the shareholder derivative action

Kim, Bo-mi Advisor : prof. Kim, Jae-Hyeong, Ph.D. Department of law, Graduate School of Chosun University

A Shareholder Derivative action is a lawsuit filed by a minority shareholders for the purpose of asking the Director's responsibility for illegal act. However, because of the relationship between the company and the representative organization of the company or between the directors and the major shareholder, the company often overlooks the illegal act within groups. This eventually makes their interests of the company and shareholders reduce. So, commercial law regulate the right of minority shareholder who qualified. In korea, 'A Shareholder derivative action' was made by commercial law in 1962, at that time, shareholder had to have a 5%'s total number of shares issued. by the way, in 1997, As Korea was funded from IMF, They noticed the need for restructuring of major company, enterprise company and financial institution and improving the corporate structure. So, renewaled commercial law regulated shareholder's total number of shares of issued as more than 1% in 1998. Consequently, Shareholder's condition of eligibility was easer than before. And April 2011, renewaled commercial law allowed shareholder who had total number of shares of issued as more than 0.01% to initiate lawsuit in case a listed enterprise. To protect the shareholder's right, renewaling of law has been improved steadily until a recent date. A former president, Park Geun-hye's government planed an economy policy which called 'Economic democratization law' and it had an intention of conglomerate reform. And One of it was derivative suit. In order to implement the policy, the Committee for Commercial Law Amendment was held in March 2013 and At June, The Ministry of Justice hosted a legislative hearing. And They heared Corporate's opinion. In the process, however, the government did not submit a bill to the National Assembly under the criticism that it would ruin the foundation of the corporation's structure. However, the government's efforts did not stop. The core objective of the current Moon Jae-in government's economic law is improving corporate governance by strengthening shareholder rights. Through policies for minority shareholders, the government aims to establish financial soundness of the middle class and the poor and to clarify the soundness of the capital market by making corporate management transparent. Among the actively promoted legislation, there is 'multiple representative suits', which have already been submitted three times. Multiple representative suit's application scope of law is wider than 'Shareholder Derivative action'. For example, if a director of a subsidiary did illegal act or neqglect their´s But itask, subsidiary company should raise the representative suit. f the company fails to act properly, parent company's share holder can raise a representative suit to recover enterprise's losses. parent company's qualified shareholder is the person who have 1%'s total number of shares issued. About this, major company, enterprise company who should be immediately legally liable for this right oppose amendment of the law. Bacause it will grant a 1% shareholder of the parent corporation a right so that all institutional investors including foreign companies can intervene in management of most of the group companies. Futhermore, it will be difficult to defend the management rights from the hostile M&A threat of foreign speculative capital. However, reformers such as NGOs and ruling parties are positively suggesting that the revision of the Commercial Law will improve corporate governance and enhance the transparency of management, thereby enhancing the competitivenes In general, A large amount of indemnity is required for directors who have committed misconduct as a result of a typical lawsuit. Therefore, the representative action is advantageous in that minority shareholders can act as a powerful countermeasure to monitor directors' conduct and prevent fraud, thereby securing transparency in company management and enhancing competitiveness of the company . However, there is a possibility that negative consequences such as the fact that if a shareholder representative action against a director is used as a threatening suit or as a means to pursue personal interests. It can not be overlooked. But in reality, corporate worries can be excessive. It is difficult for a minority shareholder to satisfy for filing a lawsuit's qualification, and the compensation paid by the director is attributed to the company, not the shareholder. It is also unrealistic to argue that foreign dumping capital will sue representative litigation against domestic companies. The shareholder representative suit is developed in the UK and has been widely used in the US and overseas. In the case of the United States, where the shareholder representative lawsuit is most active, the average number of complaints filed by shareholder representatives for the past 10 years has reached 233 since the first case of a multiple derivative suits in the case in 1987. In Japan, the number of lawsuits is rapidly increasing, and in June 2014, the renewaled Company Law allowed multiple derivative suits under certain conditions. On the other hand, in Korea, the use of law was very small. 58 cases have been ruled have been filed for 16 years from 1997 to 2012. (28 cases have been judged by the listed companies, 30 cases have been filed by the unlisted companies.) In order to ensure that the representative lawsuits are consistent with the purpose of introducing the representative lawsuits in such a trend, it is necessary to review the status of representative cases and judicial issues in Korea from the filing of the representative cases to the effect of the judgments, The purpose of this study is to find a way for the representative litigation system to function properly in the future through comparative studies such as anti - bribery measures. In such a trend, In order to ensure that the representative lawsuits are consistent with the purpose of introducing the representative lawsuits. it is necessary to review the status of representative cases and judicial issues in Korea from the filing of the representative cases. The purpose of this study is to find a way for the representative litigation system to function properly in the future making a comparative studies through overseas' lawsuit and case.