회사소송에서 주주의 원고적격 – 최근 대법원 판결에 대한 비판적 검토 -

Abstract

In most of the corporate litigations shareholders are entitled to bring suits according to the provisions of the Korean Commercial Law(KCL) or the rights acknowledged in the relevant cases. The status of a shareholder is related to his standing in the suits. The shareholder does not retain the right to administration nor the right to disposal of the corporation, but he or she has the legitimate interest to conduct a litigation as a party or a third party trustee in Corporate Litigations. In a corporate suit brought by the shareholder, it often brings a question regarding a standing of the shareholder when he or she loses the status as a shareholder or fails to fulfill the requirement to possess shares more than stipulated percentage after he or she has brought the suit. According to Civil Procedure Act, the standing of a party is related to the requisite for litigation, thus the question aforementioned would consequently deprive the shareholder of the standing. It is more critical especially when the shareholder loses the status or ceases to possess the shares against his or her will. Recently the Korean Supreme Court made decisions in cases regarding the shareholder derivative suit and the request to inspect and copy the books of account. The holding of these cases are as following: the shareholder must retain the status as a shareholder and the possession requirement throughout the litigation. If he or she loses the status as a shareholder at any point of the pending litigation, the shareholder loses his standing unless there were special circumstances, and it is not different in the situation where the shareholder loses the status in the company against his or her will. The holding of these cases, however, is contrary to the basic principle the corporate law to maintain the corporate litigation as much as possible, and is likely to violate the principle of private autonomy and the right of the shareholder to the property and to bring the suit, especially when the shareholder loses the status as a shareholder or fails to fulfill the possession requirement against the will. In this regard, the recent Supreme Court cases need to be reviewed and repealed and the provisions regarding the ʻshareholderʼ as a party to have a right to bring a suit should be re-interpreted restrictively and constitutionally. For these, the following would be suggested: First, the situation where the shareholder loses the status or fails to fulfill the possession requirement against his or her will should be distinguished and taken as the exceptional ground for maintaining the standing. Second, the supplementary legislation should be in place especially in the course of corporate reorganization such as merger, statutory stock exchange or tatutory stock transfer to enable the shareholder to maintain the standing in the suit because the court tend to be hesistant to recognize the grounds for exception without explicit statutory provisions.