주주의 대표소송에 관한 소고 －당사자를 중심으로－

Abstract

A derivative suit is an action by the shareholder on behalf of the company to pursue a cause of action that is vested in (or belongs to) the company where there is an abuse of power by the directors . Any shareholder who holds more than 1/100 of the total issued and outstanding shares may demand that the company file an action against directors to enforce their liability. Any shareholder who has been holding 1/10,000 or more of the total number of outstanding stocks issued by any stock-listed corporation or any Kosdaq-listed corporation for 6 months under the conditions as prescribed by the presidential Decree may exercise his right as a stockholder. This demand shall be made in writing, stating the reason and the name of directors etc. thereof. But if irreparable damage may be caused to the company with the lapse of the period, the shareholder may immediately file such action. If the company has failed to file such an action within 30days from the date on which the demand was received, the shareholder may immediately file such an action. Shareholding at the time of the alleged wrong is required of a shareholder bringing a derivative action. And Standing to sue must exist not only when the action is commenced but during its entire maintenance through entry of the final judgement. Only the shareholder, to enter his or her name in the register of shareholders, shall file a suit, because the transfer of a registered share shall not be asserted against the company, unless the name and address of the transferee have been entered in the register of shareholders. The double suit, the shareholder of the parents company file a suit against the directors of the subsidiary company on behalf of the subsidiary company, is not permitted, because every corporation is one’s own incorporation. Shareholders of stock-listed or Kosdaq-listed company, whose condition of Article 403 of the commercial code was fulfilled, shall file a suit.