株主代表訴訟의 活性化 方案에 관한 考察
A Study on the Activation of the Shareholder's Derivative Suit
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초록
The shareholder's derivative suit is generally defined as the action that minority shareholders representatively or secondarily on behalf of the corporation can enforce a corporate right against directors who did wrongful act to the corporation, where those in control of the corporation refused to have the corporation sue directly. This suit has been adopted in Korea Commerical Code since 1962 in order to protect the interest of the corporation the misfeasance and misfeasance of directors and mangers. Nevertheless, before 1998, there was on case that derivative suit was instituted. So the devices are needed to activate the derivative suit. In order to make a derivative suit plays fully its function it is deemed to be necessary that there should be supplementary work in our law: first, the 1% minimum share holding requirement to sue should be relaxed. Second, the plaintiff shareholders right of access of the corporate accounting books and right of appointment demand of inspector that the 3% minimum share holding requirement should be relax in order to make it easy for plaintiff shareholders to get corporate information. Third, there is necessary to reduce the burden of proof of plaintiff where it needs and to convert to the responsibility to give evidence to the negligence of duty by the director in case that derivative suit is made against the director should be premised.
Abstract
The shareholder's derivative suit is generally defined as the action that minority shareholders representatively or secondarily on behalf of the corporation can enforce a corporate right against directors who did wrongful act to the corporation, where those in control of the corporation refused to have the corporation sue directly. This suit has been adopted in Korea Commerical Code since 1962 in order to protect the interest of the corporation the misfeasance and misfeasance of directors and mangers. Nevertheless, before 1998, there was on case that derivative suit was instituted. So the devices are needed to activate the derivative suit. In order to make a derivative suit plays fully its function it is deemed to be necessary that there should be supplementary work in our law: first, the 1% minimum share holding requirement to sue should be relaxed. Second, the plaintiff shareholders right of access of the corporate accounting books and right of appointment demand of inspector that the 3% minimum share holding requirement should be relax in order to make it easy for plaintiff shareholders to get corporate information. Third, there is necessary to reduce the burden of proof of plaintiff where it needs and to convert to the responsibility to give evidence to the negligence of duty by the director in case that derivative suit is made against the director should be premised.