주주대표소송의 민사소송법적 쟁점

Abstract

The shareholder’s derivative suit (hereinafter as “the suit”) is a legal domain that spans the fields of the Commercial Act and the Civil Procedure Act. The Korean Civil Procedure Act was modelled after the system of German law through Japanese law, whereas the suit under the Commercial Act accepted the U.S. system. Although these acts differ in terms of their history, efforts are needed to explain the suit from a perspective of the Civil Procedure Act. Accordingly, this paper discussed the security for damages, succession of a lawsuit, and standing of a party to compulsory execution from a consolidation perspective considering the relationship between the Commercial Act and the Civil Procedure Act..The results of this discussion are as follows. First, while the coverage of the security for damages in the suit is wider than that of the security for litigation costs under the Civil Procedure Act, due to the applicable provisions of the Civil Procedure Act, some requirements necessary for the security for damages in the suit must be interpreted from the standpoint of the Civil Procedure Act. Second, if the shareholder who originally filed the suit dies or dissolves, the suit must be terminated, but if the successor wishes, an opportunity to continue the lawsuit must be guaranteed. In addition, if a shareholder who filed the suit transfers all of the shares he owns, it should be considered that the succession by participation is possible if the transferee of the shares meets the requirements for standing to sue under the Commercial Act. Third, although the Civil Execution Act does not stipulate the execution procedure for the shareholders’ representative lawsuit, in the event that the plaintiff is not allowed to have a standing as a party to a compulsory execution despite the he wins the suit, the purpose of the suit is neglected. Therefore, the plaintiff of the lawsuit can be a party to a compulsory execution.