미국과 한국의 대표소송 비교 연구 - 소송절차상의 쟁점을 중심으로 -

Abstract

A shareholder derivative suit is a lawsuit by a shareholder of a corporation, not on the shareholder’s own behalf, but on behalf of the corporation. The overall procedure in the U.S. to file a derivative suit by a shareholder is usually as follows. The shareholder may brings an action against the parties allegedly violated a duty owed to the corporation causing harm to the corporation, either fiduciary duties owed by corporate directors or officers, or obligations of a third party pursuant to a contract with the corporation. Shareholder includes a beneficial owner whose shares are held in a voting trust or held by a nominee on the beneficial owner’s behalf. A shareholder may not commence or maintain a derivative proceeding unless the he or she was a shareholder of the corporation at the time of the transaction of which the plaintiff complains. In a derivative suit the corporation is named as a nominal defendant and is an indispensable party but does not normally exercise control over the suit. No shareholder may commence a derivative proceeding until a written demand has been made upon the corporation to take suitable action. Shareholder’s derivative suit shall be dismissed, as special litigation committee appointed by board of directors functioned effectively in a way that fully satisfied prerequisites for application of business judgment rule when it determined not to pursue action against directors and officers. A derivative proceeding may not be settled without the court’s approval. Where a derivative action is brought for the benefit of a going corporation, the whole recoverable amount must be decreed to be paid to the corporation. On termination of the derivative proceeding the court may order the corporation to pay the plaintiff’s reasonable expenses (including counsel fees) incurred in the proceeding if it finds that the proceeding has resulted in a substantial benefit to the corporation. Under the Korean Commercial Code, only the minority shareholders holding no less than 1% of the total outstanding shares may file a derivative suit on behalf of the corporation. The abolition of minimum percentage ownership requirement for commencing a derivative proceeding is highly recommended. The introduction of special litigation committee to the Korean Commercial Code is also recommendable to avoid the abuse of derivative suit by the abolition of the above requirement.