다중대표소송의 입법화에 관한 연구

Abstract

A multiple derivative suit is a representative lawsuit brought by a shareholder, not against the company that issued the stocks he owns, but against the members of board of directors of a subsidiary company or a sub-subsidiary, sub-sub-subsidiary, etc. The Korean Supreme Court dismissed the double derivative suit of the plaintiff on the grounds that the shareholder of the controlling company lacks standing to sue, but various arguments have been put forth on legalization of double derivative suits. There are cases where both the parent and the subsidiary companies do not hold the representative director of the subsidiary company to account despite his embezzling of subsidiary company assets. The minority shareholders of the parent company can file a representative suit against the representative director of the parent company for damages suffered by the parent company. However, when the representative director of the parent company does not have resources to pay for damages, or when it is difficult to assess damages suffered by the parent company, it is necessary to allow a double derivative suit by the minority shareholders of the parent company against the representative director of the subsidiary company. Applying a similar logic, it necessary to recognize a triple derivative suit as well as a quadruple derivative suit, etc. In this paper, we propose a concrete legislative theory, after reviewing the cases where a multiple derivative suit is recognized for a consecutive parent-subsidiary relationship. There is a question of who is allowed to file a multiple derivative suit. Can a sole shareholder bring suit? Can minority shareholders who own more than one-hundredth of the total number of issued shares (Article 403 of the Commercial Law) bring suit? If we allow a multiple derivative suit on account of protecting economic interests of the suing shareholders, it is reasonable to recognize the standing to sue of minority shareholders of the parent company. There is a problem as to what extent the multiple derivative suit should be recognized. Should only single derivative suits be recognized? Should triple derivative suits also be recognized? Should quadruple derivative suits be? Are we to recognize them as long as there is a chain of parent-subsidiary relationship? For example, if the percentages of ownership of the shareholders who brought the multiple derivative suit are equal, and the amounts that the subsidiary or sub-subsidiary company will gain after winning the case are equal, the financial profit gained by the shareholders of the parent company for winning a triple derivative suit exceeds one half of the financial profit gained for winning a double derivative suit. Thus, it can be said that there is not much difference in the financial profit gained by the shareholders whether it is the subsidiary, the sub-subsidiary, or the sub-sub-subsidiary who receives compensation for damages by winning a multiple derivative suit. Hence, with consecutive parent-subsidiary relationships, it is reasonable allow bringing multiple derivative suits, regardless of whether it is the subsidiary, the sub-subsidiary, or the sub-sub-subsidiary who receives compensation for damages.