회계장부열람권의 이유 기재에 관한 소고 -대법원 2022. 5. 13. 선고 2019다270163 판결을 중심으로

Abstract

According to Article 466, paragraph (1) of the Commercial Act, any shareholder who holds shares representing at least three percent of the total number of issued and outstanding shares may request in writing, stating the grounds therefor, the inspection or copying of the books of account and related documents. About ‘the degree of the statement of the grounds’, The Supreme Court’s ruling in case 99da137 on December 21, 1999 held that the grounds should be stated with particularity to proceed procedure carefully and to make it easier for the companies to find the existence of their duty to allow a shareholder to inspect the records and the permissible scope of the records. After the Supreme Court’s above ruling, about ‘the degree of specificity of the statement of the grounds’, the Daegu District Court’s ruling in case 2002kahab144 on May 31, 2002 required “the degree that gives rise to at least a reasonable doubt that wrongdoing which is stated as the grounds by the demanding shareholder might have occurred actually”(hereafter, ‘a reasonable doubt requirement’). Requiring this ‘a reasonable doubt requirement’ has become the mainstream of the lower court’s rulings. However about ‘the degree of specificity of the statement of the grounds’, the Supreme Court’s ruling in case 2019da270163 on May 13, 2022(hereafter, this case) held that there is no need to state the grounds to the degree that gives rise to a reasonable doubt that grounds might be true or to attach materials supporting that grounds. So this case denied ‘a reasonable doubt requirement’ and liberalized ‘the degree of specificity of the statement of the grounds’. This paper referred to relevant laws and rulings of the US and Japan and reviewed the propriety of this case. It can be said that the court judgement is proper according to the following reasons. ① If ‘a reasonable doubt requirement’ is required when it comes to the statement of the grounds, the exercise of shareholder's right to inspect books of account would be restricted obsessively. ② There are several tools to prevent misuse, so there can be a doubt about the need to require ‘a reasonable doubt requirement’ additionally. ③ Considering functional interoperability between ‘shareholder's right to inspect books of account’ and ‘shareholder's right to file representative suits’, it is necessary to require the similar degree of specificity of the statement of the grounds when shareholder requests the company to file a lawsuit against directors and when shareholder requests the inspection of the books of account. ④ Even though ‘a reasonable doubt requirement’ is not required, it would be hard to say that the system would be biased toward the minority shareholders. ⑤ It is necessary to reinforce shareholder's right to inspect books of account to monitor the management and secure the effectiveness of the shareholder's right.