주주대표소송의 활성화를 위한 소고

Abstract

Shareholder's derivative suit is generally defined as the class action, in which minority shareholders, on their corporation's behalf, can enforce corporate rights against the corporate directors who committed illegal acts or wrongful acts on the corporation, in case those in control of the corporation refuse to have the corporation sues directly. For the activation of the shareholder's derivative suit, first of all, the requirement of the plaintiff shareholders qualified to file a lawsuit needs to be more mitigated than status quo, depending on the size or type of the company concerned. Second, in order to file derivative suit, it is required to verify the information on the illegal act or misconduct of directors. Such verification could be effectively done through the inspection on accounting books and records. However, under the current commercial law, the right of inspection on accounting books and records is not that easy, in a way, it is even more stringent than the requirement of the derivative suit. Third, through the derivative suit, minority shareholders are given rights to accuse liability of directors on behalf of the company, which is not for the benefit of the plaintiff shareholders themselves but for the benefit of the company itself. Thus, there should be corresponding compensations for the substantial attorney's fees, the commitment of time, effort and mental stress of the minority shareholders who file the suit. Finally, derivative suit performs important functions to prevent illegal acts or misconduct of directors. Therefore, for the protection of minority shareholders and the activation of derivative suit, it is required for investor protection agencies to support the minority shareholders who prepare a derivative suit. Thus, these investor protection agencies will be able to advise the minority shareholders of the pertinent procedures and provide them with a variety of information and knowledge about derivative suit. And, the existence of such agencies will also have the effect to prevent the abuse of derivative suit and to suppress the illegal acts or misconduct of directors itself.