다중대표소송의 발전방향에 관한 연구

Abstract

It is, nowadays especially in the twenty-first century South Korea, not frequent for an active shareholder to institute a derivative action against the incumbent directors or officers of his or her company. It has been absolutely rare, in the prior century, to see the derivative suit in Korean business circle. The plaintiffs of this litigation in Korea are now overwhelmingly the non-governmental organizations, like People’s Alliance of Korea (Cham–Yeo-Yun- Dae), etc. They are eager to show ‘an economic democracy’ through this type of litigation. Until now, there have been some cases of simple derivative suit. The most famous one was a case, Cham-Yeo-Yun-Dae vs. Samsung Electronics, sentenced on October 28th, 2005, with the Docket Nr. 2003 Da 69638, in which the Court applied ‘business judgment rule’ and limited the liability of directors. In the year of 2004, the Supreme Court of Korea delivered the famous case on the ‘double derivative suit’ for the first time. The High Court of Seoul made a decision in favour of the plaintiff and introduced the double derivative suit judicially for the first time in Korean peninsula. The defendant appealed and the Supreme Court reversed the original decision. It rejected any analogical interpretation of Sec. 403 subsection (1) Korean Commercial Code and sentenced that the plaintiff did not have any standing for this type of litigation. Scholars are now trying to find a path to introduce multiple derivative suit in Korea. In American corporate law, the double derivative suit is nowadays legal-theoretically through the following paths on the way ; (1) piercing the corporate veil, (2) common control theory, (3) the fiduciary relationship between the shareholder and company, (4) deterrence and compensation theory. The best way, according to the author, is the judicial one, the establishing sufficient case law, like in England, in Hong Kong etc. Japan has recently revised the “New Company Act, 2006” and newly codified the double or multiple derivative actions. But the new provisions permit such an action, only if the parent owns all the shares of its subsidiary. So the ‘new provision’ is not so meaningful for the perspective of practicality. The scope of applicability is from the beginning too narrow to achieve a satisfatory result. The author tried to show the legal situation around the multiple derivative actions worldwide and tried to show the hopeful future of this institute.