회사소송의 재량기각 제도의 법적 제문제 - 비교법과 판례분석에 기초한 입법론 -

Abstract

The purpose of this paper is to examine the law and reality of corporate lawsuits and so called “Court’s discretionary dismissal” in comparison with Japanese law. The Korean Commercial Code(hereinafter “KCC”) has a unique and potentially powerful weapon against corporate lawsuits. Under the KCC, the court can dismiss the plaintiff’s claim, if it finds rescission or voidness to be inappropriate, considering “the content of resoluton, the current status of the firm and other relevant factors”(Art.189 and Art.379 KCC). This paper examines a few issues raised by these provisions, and proceeds as follows. First, this paper explores the scope of the discretionary dismissal. The provisions of it apply only to a rescission lawsuit based on a procedural defect and corporate restructuring or fundamental changes in a corporation such as reduction of legal capital, new issuance of shares, merger and divisions. Discretionary dismissal applies to neither nullity lawsuit nor non-existence lawsuit. This paper does not find the approach of the KCC balanced in treating these two corporate lawsuits on the validity of shareholder resolution. Second, this paper discuss the requirement of the discretionary dismissal. The provision on discretionary dismissal was modelled after the Japanese Commercial Code of 1938(Art.251). Although the current Japanese Corporate Act(hereinafter “JCA”) still maintains a provision on discretionary dismissal(Art. 831 para.2), it is different in substance from the KCC. The JCA allows the court to grant discretionary dismissal when two requirement are satisfied: (1) materiality of a procedural defect and (2) causal relationship between and the resolution involved. In contrast, the requirements under the KCC are less strict. Even if there is a material defect which affected the resolution, the court can still rescission or voidness inappropriate and dismiss the suit based on “the content of resolution, the current status of the firm and other relevant factors.” This paper criticizes the permissive attitude of Korean courts toward discretionary dismissal, and concludes with a few remarks about revision of rule of discretionary dismissal.