주주총회 결의하자소송의 하자사유에 관한 입법론적 고찰 - 독일 주식법과의 비교법적 검토 -
The Grounds for the Lawsuits on the Validity of Shareholder Resolution: A Comparative Corporate Law Study
0
조회
0
다운로드
8
인용
0
참고문헌
키워드
초록
It is well known that Shareholder Resolution lawsuits(hereinafter “SR Lawsuits) serve as an important remedy in civil law jurisdictions. The rules on SR lawsuits, however, vary widely even among civil law countries such as Korea, Japan and Germany. Those rules are not identical between Germany and Korea. The purpose of this paper is to examine the law of SR lawsuits in Korea in comparison with German law and from a broader comparative perspective. This paper proceeds as follows. First, to set a stage for our discussion of SR lawsuits in Korea, we set forth a short sketch on historical development of the rules of SR lawsuits in Germany, Japan, and Korea, especially focusing on the grounds for three types of SR lawsuits; rescission lawsuits, nullity lawsuits, and non-existent lawsuits(II). Second, we then discuss some of the salient features of German law on SR lawsuits in comparison with Korean law(III). Finally, we conclude with a few remarks about revision of rule of SR lawsuits in Korea (VII). As for a dividing line between rescission and nullity lawsuits, we want to make one observation. In Korea, to distinguish between nullity and rescission lawsuits based on the nature of defects as in Korea is certainly straightforward and easy to implement. A weakness of this approach lies in its lack of flexibility. A procedure defect, however, is less problematic in terms of rigidity because it may lead to an non-existence law suit if it is regarded as too serious. On the other hand, rigidity may matter in the case of substance defect. If the substance defect involved is not so material, it may be better to treat them as a ground for rescission, which is subject to requirements such as statute of limitation and discretionary dismissal. It may be better for Korea to follow the German approach in this respect by treating a substance defect as a ground for rescission, if the law alleged to be violated relates to the interest of minority shareholders, rather than that of third parties or the general public. Under this new approach, violation of the principle of equality of shareholders, for example, is to constitute a ground for rescission, rather than nullity.
Abstract
It is well known that Shareholder Resolution lawsuits(hereinafter “SR Lawsuits) serve as an important remedy in civil law jurisdictions. The rules on SR lawsuits, however, vary widely even among civil law countries such as Korea, Japan and Germany. Those rules are not identical between Germany and Korea. The purpose of this paper is to examine the law of SR lawsuits in Korea in comparison with German law and from a broader comparative perspective. This paper proceeds as follows. First, to set a stage for our discussion of SR lawsuits in Korea, we set forth a short sketch on historical development of the rules of SR lawsuits in Germany, Japan, and Korea, especially focusing on the grounds for three types of SR lawsuits; rescission lawsuits, nullity lawsuits, and non-existent lawsuits(II). Second, we then discuss some of the salient features of German law on SR lawsuits in comparison with Korean law(III). Finally, we conclude with a few remarks about revision of rule of SR lawsuits in Korea (VII). As for a dividing line between rescission and nullity lawsuits, we want to make one observation. In Korea, to distinguish between nullity and rescission lawsuits based on the nature of defects as in Korea is certainly straightforward and easy to implement. A weakness of this approach lies in its lack of flexibility. A procedure defect, however, is less problematic in terms of rigidity because it may lead to an non-existence law suit if it is regarded as too serious. On the other hand, rigidity may matter in the case of substance defect. If the substance defect involved is not so material, it may be better to treat them as a ground for rescission, which is subject to requirements such as statute of limitation and discretionary dismissal. It may be better for Korea to follow the German approach in this respect by treating a substance defect as a ground for rescission, if the law alleged to be violated relates to the interest of minority shareholders, rather than that of third parties or the general public. Under this new approach, violation of the principle of equality of shareholders, for example, is to constitute a ground for rescission, rather than nullity.
참고문헌 (35)
- 권기범, "현대회사법론" (2012), 삼지원
- 김건식, "회사법" (2015), 박영사
- 김정호, "회사법" (2015), 법문사
- 송옥렬, "상법강의 제5판" (2015), 서울
- 양창수, "독일민법전-총칙·채권·물권-" (2002), 박영사
- 이철송, "회사법강의" (2013), 박영사
- 이형규, "독일주식법" (2014), 법무부
- 정동윤, "상법(상)" (2012), 법문사
- 최준선, (2015), 삼영사
- 한국상사법학회, "주식회사법대계 II(기관)(최준선 집필 부분)" (2013), 법문사
- 김성탁, "판례분석 회사법 제2권" (2012), 인하대학교출판부
- 김재범, "판례를 중심으로 살펴본 주주총회결의의 하자원인", 사법행정, (409) (1995)
- 오영준, "주주총회결의의 하자와 상법 제39조의 부실등기 책임", 대법원판례해설77호(2008 하반기), 법원도서관, ~ (2009)
- 정대익, "판례실무연구VIII" (2006), 박영사
- 최문희, "주주총회 결의하자 소송의 동향과 입법론적 과제", BFL, (74) (2015), 서울대학교 금융법센터
- 石井照久, "株主総会の硏究" (1958), 有斐閣
- 上柳克郞, "新版注釋會社法(5)(株式會社の機關(1))(岩原紳作 집필 부분)", pp.247~ (1985), 有斐閣
- 上柳克郞, "新版注釋會社法(5)(株式會社の機關(1))(小島 孝 집필 부분)", pp.252~ (1985), 有斐閣
- 岩原紳作, "會社法コンメンタール 7(前田重行 집필 부분)", pp.318~ (2013), 商事法務
- 岩原紳作, "株主総会決議を爭う訴訟の構造(一)~(九·完)", 法學協會雜誌, 96(6) (1979)
- Martin Gelter, "Why do Shareholder Derivative Suits Remain Rare in Continental Europ", Brooklyn Journal of International Law, 37, pp.843~883 (2012)
- Theodor Baums, "Eine empirische Studie", pp.2329~ (2011), ZIP
- Walter Bayer, "der aktuellen rechtspolitischen Diskussion", pp.1193~ (2013), ZIP
- Holger Fleischer, "Reformperspektiven des aktienrechtlichen Beschlussmängelrechts im Lichte der Rechtsvergleichung", pp.765~ (2012), AG
- Holger Fleischer, "Aktuelle Entwicklungen im deutschen, österreichen und schweizerischen Gesellschafts- und Kapitalmarktrecht 2012" (2013)
- Holger Fleischer, "Bagatellfehler im aktienrechtlichen Beschlussmängelrecht", pp.149~ (2014), ZIP
- Wolfgang Grobecker, "Der Bestätigungsbeschluss nach §244 AktG in der Praxis", NZG, ~ (2007)
- Mathias Habersack, "Zur Reform des Beschlussmängelrechts- Bestandaufnahme nach ARUG und Perspektiven-", ZGR, ~ (2010)
- Walter Hallstein, "Die Aktienrechte der Gegenwarts" (1931), Verlag von Franz Vahlen
- Alfred Hueck, "Anfechtbarkeit und Nichtigkeit von Generalversammlungsbeschlüssen bei Aktiengesellschaft" (1924), J. Bensheimer Verlag
- Alfred Hueck, "Das Recht der Generalversammlungsbeschlüsse und die Aktienrechtsreform" (1933), Carl Heymanns Verlag
- Uwe Hüffer, "Münchener Kommentar zum Aktiengesetz, Bd.7" (2001)
- Uwe Hüffer, "Akiengesetz" (2014), C. H. Beck
- Katja Langenbucher, "Aktien- und Kapitalmarktrecht" (2015), C. H. Beck
- Wolfgang Zöllner, "KölnKommAktG", pp.243~