대표소송의 원고적격과 소송상의 신의칙 - 대법원 2018. 11. 29. 선고 2017다35717 판결 및 대법원 2019. 5. 10. 선고 2017다279326 판결 -

Abstract

If a shareholder who filed a derivative suit does not hold any stocks after filing a suit, the claim is dismissed pursuant to Article 403(5) parenthesis of the Commercial Act(hereinafter referred to as the “the Article”). The Supreme Court ruled that even if the plaintiff involuntary loses his shareholder’s position by the reorganization, the action should be dismissed by interpreting the Article as the text. In this regard, there was a theory that standing should be maintained if a plaintiff lost a shareholder status by reorganization such as merger, all-inclusive share swap or transfer. It seems to refer to the case-law accumulated through precedents in the U.S. and Japan’s legislation However, considering the U.S. precedent and the Japanese law, (1) the mainstream of the U.S., such as Delaware, is that, in principle, the plaintiff’s standing is lost in the event of a company’s organization due to continuous ownership rule and the reorganization exceptions are not widely accepted, and (2) a few states adopted involuntarily loss doctrine, but equally, they are limited in its application. (3) In the U.S., the matters considered are not simply the fact that there is a ‘reorganization’, but the behavior of parties or the interest of participants. So it is very similar to Trust and Good Faith in the Korean Civil Procedure. (4) In the meantime, Japan actively codified it, but it shows ‘limits of codification’ by hindering the flexible operation of the system and doing little to solve the problem. Based on these comparative legal reviews, it is not desirable to maintain standing unconditionally in the case of reorganization and it could be another formal logic. In considering this matter, it is necessary to base on the principle of good faith in civil procedure, not the principle of good faith in the substantive law.