CHOSUN

株主代表訴訟과 理事의 責任에 關한 硏究

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Author(s)
이상은
Issued Date
2006
Abstract
The shareholder`s derivative suit can be defined as the suit that the shareholders file against directors of the corporation in case the corporation does not seek liability of directors who committed wrong doings. The management of corporation has been entrusted to directors, professional manager, as the scale of the corporation is getting bigger and the number of shareholders became large. It causes to separate the ownership of the corporation from the management. The corporation is mainly governed by board of directors and shareholders participation to corporate business becomes weaker. In reality, shareholders have difficulty to direct and monitor directors` corporate activities. Even though minority shareholders who cannot control the decision of shareholder`s meeting vote in the shareholder meeting, it is impossible for them to have their intent be adopted as the decision of the corporation. Therefore, minority shareholders become powerless since they have only formal right of decisions.
As the participation of the shareholders become unrealistic and shareholders` power to control the corporation weaker, the right of shareholders is shrink and the right of the directors becomes expanded. Also directors` breach of duty of loyalty and duty of care, and the abuse of directors` rights have caused damages to the corporation. Therefore, it becomes necessary to prevent this phenomena.
Shareholder`s derivative suits has developed from the necessity to protect shareholders by recovering and preventing damages of the corporation. Also they became the mechanism to have board of directors operate the corporation reasonably and faithfully by letting board of directors to comply with their obligation. Shareholder`s derivative suit enables minority shareholder to monitor board of directors in judicial terms in case controlling shareholder cause damages to the corporation.
However, there are some negative aspects of aspects of shareholder`s derivative suit. The discouragement of board of directors in business activities owing to the pressure of liability, the abuse of shareholder`s derivative suit in order to pursue personal interest give harm to the corporation. Therefore, shareholder`s derivative suit must be operated in balanced and harmonized manner between minority shareholders` right to control directors` right to manage the corporation.
In recent, we discussed how to enhance the role of directors and the board of directors. As the result, it was generalized that shareholders derivative suit against directors. The suit can be instituted by shareholders when the corporation does not sue against directors who did illegalities and injuries on corporation. This suit has been adopted in Korean Commercial Law since 1962 in order to protect corporate profits from damages caused by directors. nevertheless, before 1998, there was no case that derivative suit was instituted. So that, Korean Commercial Law was revised to activate the suit. After that, with the first case of Che-il Bank, a lots of famous derivative suit were instituted against directors. We expect the suit will be very popular in Korea. But in this situation, we have to worry about several problems. Especially, because of heavy burden of directors liabilities, most of corporations are very hard to find out a capable and proper candidate to be a director, and in managerial activities, directors have a tendency to escape a positive management in stead of expecting big earns. To solve these problems, I discussed on the activation of derivative suit and the reduction of directors liabilities in this study.
The first chapter introduces the object, method and scope of the study. The second chapter analyzes theoretical background of the shareholder`s derivative suit, its function and objective. The third chapter covers on the activation of derivative suit and the reduction of directors liabilities. The forth chapter analyzes whether the corporation participate in the suit to help defendant directors. The fifth chapter is a conclusion.
Alternative Title
A Study on the Derivative Suits and the Directors Liabilities
Alternative Author(s)
Lee, Sang-Eun
Affiliation
조선대학교 대학원
Department
일반대학원 법학과
Advisor
양동석
Awarded Date
2006-02
Table Of Contents
제1장 序論 = 1
제1절 硏究의 目的 = 1
제2절 硏究의 範圍 및 方法 = 4
제2장 株主代表訴訟制度의 成立과 構造 = 6
제1절 代表訴訟制度의 成立 = 6
제2절 우리 會社法上 代表訴訟制度 = 8
제3절 代表訴訟의 構造 = 35
제4절 代表訴訟의 機能 = 40
제3장 代表訴訟에 따른 理事의 責任 = 45
제1절 代表訴訟의 活性化 = 45
제2절 理事의 會社에 대한 責任 = 56
제3절 理事의 注意義務와 經營判斷의 原則 = 65
제4절 理事의 責任輕減 = 79
제4장 會社의 被告理事側에 補助參加 = 87
제1절 訴訟參加의 論點 = 87
제2절 代表訴訟에 있어서 監事의 役割 = 93
제5장 結論 = 98
參考文獻 = 103
Degree
Doctor
Publisher
조선대학교 대학원
Citation
이상은. (2006). 株主代表訴訟과 理事의 責任에 關한 硏究.
Type
Dissertation
URI
https://oak.chosun.ac.kr/handle/2020.oak/6244
http://chosun.dcollection.net/common/orgView/200000233171
Appears in Collections:
General Graduate School > 4. Theses(Ph.D)
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