상법상 소수주주권 강화를 위한 다중대표소송제도의 실효성 강화방안 연구

Abstract

When a major shareholder of a parent company establishes a subsidiary and misappropriates the assets or business opportunity of the subsidiary, multiple representative Multiple representative lawsuits were enacted in December 2020 for the purpose of establishing a sustainable growth structure for companies and the national economy by improving the opaque decision-making structure of companies by introducing the litigation system and the separate election of members of the audit committee. In the stock market, circular shareholding is gradually being resolved through subsidiaries, parent company, sub-subsidiary system, and holding company system. M&As centered on large corporations are also occurring frequently. Of course, it causes serious injury. Currently, in our capital market, the possibility of conflicts of interests between shareholders and management is increasing due to the activation of the holding company system, diversification of merger methods, and the existence of a malformed ownership structure of circular shareholding. The asymmetry of information due to the increase in the amount of internal information, such as the provision of financial indicators, asset management and company information management, is more serious than ever. Considering that the discussion on the introduction of multiple representative litigation has been raised for a long time due to the government-led corporate structure soundening work such as diversification of corporate forms, mergers and corporate structure reform, the enactment of multiple representative litigation in 2020 is timely. see. According to Article 406-2 of the Commercial Act, it is necessary to consider whether it is in the best of circumstances to stipulate a 50% equity relationship between a holding company and a parent company so that multiple representative lawsuits are filed only when this is satisfied. In the case of circular shareholding, if the shareholding ratio of the subsidiary is less than 50%, it may be excluded from the subject of multiple representative litigation. In this case, there arises a problem in that it is difficult to ask the location of responsibility despite the many problems in the governance structure of circular shareholding. In this research thesis, focusing on the above problems, first reviewing the general theory on representative litigation, then examining the necessity of introducing multiple representative litigation, and discussing the legislative feasibility. In addition, in the existing corporate governance of Korea, the problem of control was caused by abnormal control of the company by fictitious capital. Holding companies or circular shareholdings that impede free and fair market transaction order were classified as representative abnormal control practices, and at one time the holding company system was banned. Holding companies and the circular shareholding system are also reasons for urging the introduction of multiple-representative litigation. The problem arises that it cannot. Because circular shareholding has a higher risk of abnormal corporate governance due to fictitious capital than a holding company system with a high ownership stake in subsidiaries, even though the need for a multiple-representative litigation system is emphasized, in the case of a company subject to circular shareholding, multiple-representative litigation The unreasonable result that the company cannot compensate the company’s damage occurs. This study not only urges the amendment of our current law in this regard, but also proposes a way to induce the strengthening of minority shareholder rights through multiple representative litigation.