二重代表訴訟의 許否에 대한 比較法的 檢討- 서울고등법원 2003.8.22. 선고, 2002다13746 판결을 대상으로 하여 -

Abstract

The Korean Commercial Code has the provision that a shareholder with at least one percent of the total outstanding shares may bring a derivative suit. This provision was designed to apply to single derivative suit. However, in August 2003, the Seoul High Court decided that a double derivative suit is permitted under the current Commercial Code. The purpose of this Article is to critically review the Court's decision. The findings are as follows: First, the court enumerated the views against the double derivative suit. One of the views is that this kind of suit is in violation of the contemporary ownership rule, under which the plaintiff must have held shares at the time of the act complained of by him in order to bring suit. However, the rule is not applicable to shareholders under the Korean Commercial Code. Second, there has been a rule that before a shareholder may proceed with a double derivative suit, adequate demand must be made of the directors of both parent and subsidiary corporations to bring suit on behalf of the subsidiary corporation, unless such demand would be futile. The Seoul Hight Court payed little attention to the importance of the demand requirement. Finally, the Seoul High Court opined that the double derivative suit is regarded as a method of recovering shareholders's loss and of deterring wrongdoings by corporate insiders. However, this kind of rationale is not enough to justify the double derivative suit under the current Commercial Code.