일본에서의 다중대표소송 제도의 쟁점에 대한 논의와 그 시사점

Abstract

Shareholders of the parent company can bring the derivative suit against a director of the subsidiary company, and that is called double derivative suit or multiple derivative suit. Ministry of Justice are taking a stance to introduce multiple derivative suit system. A number of bills to introduce it are sponsored in the 20th National Assembly. In Japan, multiple derivative suit system was introduced by amendment of Japanese Companies Act in 2014. Japanese Companies Act allows multiple derivative suit, only in case that the parent company holds all shares of the subsidiary company. But if multiple derivative suit system is introduced in Korea, it would be better to allow multiple derivative suit in case that the parent company holds over 50% shares of the subsidiary company. Japanese Companies Act allows multiple derivative suit, only in case that shareholder of the parent company holds a certain amount of shares of the parent company. In Korea, it would be also better to allow multiple derivative suit in case that shareholder of the parent company holds a certain amount of shares of the parent company. Japanese Companies Act allows multiple derivative suit, only in case that the book value of the subsidiary company exceeds one-fifth of the parent company’s total amount of assets. But In Korea, it would be better not to impose such requirement. Japanese Companies Act requires shareholders of the parent company to ask only the subsidiary company to bring suit before they bring multiple derivative suit. But In Korea, it would be better to require shareholders of the parent company to ask both the parent company and the subsidiary company to bring derivative suit or just suit before they bring multiple derivative suit. Japanese Companies Act allows multiple derivative suit, only in case that the parent company suffered damage. In Korea, it would be also better to allow multiple derivative suit in case that the parent company suffered damage. And if the requirement of ‘damage to parent company’ is not clear, we may need to consider other requirement such as ‘existence of parent company’s instruction’.