일본 개정회사법상 모회사의 주주보호에 관한 검토 - 다중대표소송 등의 제소요건을 중심으로 -

Abstract

In 2014, the Japanese Revised Companies Act strengthened shareholder rights of a parent company by introducing “multiple derivative suits”. Since traditional corporate act assumes that each company is a separate legal entity, it has been less effective in protecting shareholders of parent-subsidiary companies. Under the premise that the economy should attract foreign capital and thereby be stimulated, the protection of shareholder rights will inevitably become an issue in legislation. In this respect, it is necessary to introduce multiple derivative suits that mitigate conflicts of interests between shareholders of parent-subsidiary companies. Although it was considerably more difficult to adopt this rule, it was narrowly introduced to reinforce shareholder rights of a parent company under the Japanese Revised Companies Act. In this article, it examines various views on these issues into two categories by offering proposals for prospective legislations of multiple derivative suits in Korea. Because the symptoms of business concentration happen extremely severe to groups, it needs to introduce multiple derivative suits to protect interests of parent company shareholders. A careful review of the preceding researches in Japan shows that it is possible to make regulations for multiple derivative suits with a limited range under the Korean Commercial Act. Therefore, it seeks to give a highly integrated view on regulations without conflicting with the existing legislation in a larger perspective. First of all, in respect of demand requirements, it should establish a relationship between a parent company and its wholly owned subsidiary company, and meet strict requirements of stock holding if a company is listed. The reason for strict regulations is to minimize possibilities of abusing the rights of commencing the suit. If there are minority shareholders in subsidiary company, it is not necessary to bring multiple derivative suits by patent company shareholders. It is not entirely fair to nullify the effects of previous actions, although procedural defects are considered null and void. When it comes to conflicting demand requirements between multiple the derivative suit and the derivative suit by existing shareholders, the suit could be nullified as it has formal defects, and it might give rise to serious trouble to lose shareholder rights by corporate restructuring. Also, in respect of compensation for damage, it should be restricted to a depreciation of stock value of a wholly owned subsidiary for damage of a parent company. When the business opportunity of one subsidiary company is transferred to another subsidiary company by the decision of a parent company, there are many controversies of their effectiveness by defects of procedural requirements so that it has a thorough grasp of the formal problems of multiple derivative suits, and it is necessary to make a systematic framework that is appropriate for corporate governance in Korea.