상법상 다중대표소송제도의 도입에 관한 고찰

Abstract

Commercial law, which is the most fundamental law that rules (or guarantees) corporate activities should fully consider the views and opinions of companies because they are the subject and user of the law. Laws and regulations do not just regulate corporate activities but also help invigorate economic activities, enhance competitiveness and maximize corporate value. In fact, a parent company and a subsidiary company are two separate legal entities and so it might be against corporate separateness if shareholders from a parent company directly call executives from a subsidiary company account. In addition, a parent company indirectly supervises its subsidiary companies under the current corporate law by executing its voting right at the shareholders' meeting, and calls executives of the subsidiary company account as shareholders depending on cases whenever it needs to do so. From this point of view, it doesn't seem to be quite necessary to protect executives of the subsidiary company by introducing a multiple derivative suit, which has become an issue regarding the transparency of corporate governance. Actually, it is not deniable that skepticism around introducing the multiple derivative suit that might create other problems and could be seen just as a way of strengthening corporate regulation. However, under the current law in which parent-subsidiary relationship is allowed, the business activities of a subsidiary company actually affect the share price of a parent company. In particular, for a case of a pure holding company that does not do any business like production and sale but only supervises subsidiary companies, the business results of the subsidiaries might harm the investment and profits of the shareholders of the parent company. Currently the law does not allow the shareholders of the parent company to control the business activities of the subsidiaries. Given the economic situations in Korea, the necessity for soundly nurturing invigorating companies is needed, and the role of the corporate law is thought to be more important than ever in guaranteeing free management to make it possible to start business based on the rule of articles. It is critical that companies are equipped with corporate governance that helps respond fast to changes to survive global competitions. In fact, many companies doing business home and abroad are on the edge of the economic crisis beginning from the global financial crisis. Many companies are seen to be half of crumbling because of decreased profits due to the easy money policy from different countries. I cautiously argue the necessity of introducing the multiple derivative suit in that companies need to establish sound and transparent corporate governance that helps respond fast to changes caused by financial crisis in order to enhance the global comparativeness and distribute profits fairly to the stakeholders including shareholders.