주주대표소송에 관한 소고-상법과 영국의 회사법제와의 비교를 중심으로-
A Study on Derivative Suits -Comparison between Korea’s Commercial Act and the UK’s Company Act -
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According to Article 403 of Korea’s Commercial Act, a minority shareholder may file a shareholder derivative suit on behalf of a corporation against one or more of the corporation’s directors to hold them accountable for their negligent or intentional misconduct in case the organization fails to do so. This concept of a derivative suit, as adopted in Korea, originates from the “equitable principles” of Britain. In the early 19th century, the Courts of Equity of England intervened in numerous internal conflicts of corporations on the basis of trust law principles and later established the Derivative Suit as a legal system that allowed the shareholders of a company to file a lawsuit on their own against the company's directors. Later, the USA also adopted this system as a vital part of its corporate law. Considering that a derivative suit works as a legal device that can protect the interests of both a corporation and its shareholders, it appears meaningful to look closely at the systems as adopted both in Korea and the UK. It is from this perspective that this study analyzes and compares the UK's Company Act of 2006 and Korea's Commercial Act with a focus on the derivative suit system including the kinds of misconducts for which the shareholders may hold the directors accountable and theprocedures that have to be undertaken to file a derivative suit. The study concludes that the Korean form of derivative suit is more effective than that of the UK in protecting the public rights of shareholders and preventing the abuse of suit-filing, both of which should be regarded as its highly critical functions.
Abstract
According to Article 403 of Korea’s Commercial Act, a minority shareholder may file a shareholder derivative suit on behalf of a corporation against one or more of the corporation’s directors to hold them accountable for their negligent or intentional misconduct in case the organization fails to do so. This concept of a derivative suit, as adopted in Korea, originates from the “equitable principles” of Britain. In the early 19th century, the Courts of Equity of England intervened in numerous internal conflicts of corporations on the basis of trust law principles and later established the Derivative Suit as a legal system that allowed the shareholders of a company to file a lawsuit on their own against the company's directors. Later, the USA also adopted this system as a vital part of its corporate law. Considering that a derivative suit works as a legal device that can protect the interests of both a corporation and its shareholders, it appears meaningful to look closely at the systems as adopted both in Korea and the UK. It is from this perspective that this study analyzes and compares the UK's Company Act of 2006 and Korea's Commercial Act with a focus on the derivative suit system including the kinds of misconducts for which the shareholders may hold the directors accountable and theprocedures that have to be undertaken to file a derivative suit. The study concludes that the Korean form of derivative suit is more effective than that of the UK in protecting the public rights of shareholders and preventing the abuse of suit-filing, both of which should be regarded as its highly critical functions.
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