다중대표소송에 관한 입법론적 고찰

Abstract

Even if a holding company and subsidiary is economically operated by forming a single entity, shareholders of the holding company, and not the shareholders of the subsidiary, can not bring a derivative lawsuit against directors of the subsidiary because the companies have a separate legal personality based on Commercial Law. However, United States case law acknowledges multiple derivative lawsuits for damage recovery incurred to shareholders of a holding company due to unlawful acts of directors of a subsidiary. The expansion of standing of shareholder derivative lawsuits has begun to be discussed along with the introduction of the holding company system in Korea as well. The Commercial Law of Korea regulates that shareholders owning one-hundredths shares of the total number of issued stocks may bring a derivative lawsuit. In relation to such, a point of view emerged opining that ‘shareholders of a holding company’ may be included in the concept of shareholders of the party with right of action. The Supreme Court of Korea did not allow multiple derivative lawsuits without substantive enactments because Korea is a civil law-based country. Based on such holding, legislation of multiple derivative lawsuits has been alleged. In Japan, the issue of protecting shareholders of a holding company arose in relation to reducing shareholder rights of shareholders of a holding company. As one solution, the introduction of multiple derivative lawsuits is being implemented. Japan has several regulations that save the purpose of the multiple derivative lawsuit system but prevent vexatious actions in the draft proposal for revision of corporate laws. In order to stifle the strong opposition from economic circles regarding the introduction of the multiple derivative lawsuit system, there is a need to refer to the draft proposal for revision of corporate laws and discussions in Japan, which possesses similar economic situations as Korea. In Korea, the symptoms of business concentration are extremely severe due to large conglomerates. As a result, there is a need to legislate multiple derivative lawsuits to protect the interest of shareholders of a parent company because management failure of subsidiaries may incur significant damage to a parent company and its shareholders. The applicable subjects of multiple derivative lawsuits should be limited to situations in which a parent company owns 100% shares of a subsidiary and in situations where the dominant-subordinate relationship through share possession overlaps, multiple derivative lawsuits should be allowed not only for subsidiaries, but also for sub-subsidiaries and sub-sub-subsidiaries. Additionally, in relation to the requirements for multiple derivative lawsuits, there is a need to make determinations by minority equity to prevent vexatious actions. Just as in standard derivative lawsuits, multiple derivative lawsuits should allow shareholders of a parent company to claim the bringing of actions, to inquire into the responsibilities of directors over a parent company and its subsidiaries, as a procedure before bringing a lawsuit. The draft proposal for revision of corporate law in Japan strictly regulates the elements necessary to bring multiple derivative lawsuits. Thus, lawsuits are not allowed in cases where the objective is to pursue an unlawful profit by the shareholder who raised the lawsuit or of a third party, or if the objective is to incur damage to a company or an ultimate parent company with complete ownership, and also in cases where damage has not incurred to the ultimate parent company with complete ownership from the cause of liability relating to such lawsuit. Vexatious multiple derivative lawsuits may be prevented by having such restricting regulations upon legislation in Korea as well. Because the business performance of a subsidiary has a crucial impact on the profits of shareholders of a parent company, understanding the management results of a subsidiary is necessary. To do so, a parent company must be able to access the account books of a subsidiary. However, as parent companies and subsidiaries are separate entities with independent legal personality from a legal perspective, the shareholders of a parent company are not able to exercise their right to access account books. Raising multiple derivative lawsuits would be realistically difficult if shareholders of a parent company are not able to obtain information relating to the accounting details of a subsidiary. In order to procure the effectiveness of multiple derivative lawsuits, access to account books of a subsidiary should be allowed to shareholders of a parent company, just as regulated in the draft proposal for revision of corporate law in Japan.