ScholarWorks@숙명여자대학교

초록

This paper is concerned with the legal effects following the introduction of multiple derivative suits related to the shareholders’protection under the revised Commercial Act 2013 in Korea. The multiple derivative suits are an action taken by the shareholders of a parent company. The shareholders of parent company litigate a suit on behalf of the parent company or the shareholders of the subsidiary against subsidiary’s directors, even though the shareholders of the parent company are not possessed of the subsidiary’s stocks. The shareholders of the parent company can pose a derivative action, called double derivative action or multiple derivative action, on the director of a subsidiary in the United States. The Japanese Revised Companies Act strengthened a shareholder’s rights of a parent company by introducing multiple derivative suits in 2014 . In Korea, the issue on a double derivative suit was first raised in the late 1990s. The Seoul High Court decided that a double derivative suit is permitted under the current Commercial Act and made an attempt to introduce it to Korea. But the Supreme Court in Korea literally applied Article 403, declaring that every company was a legal independent entity and that a shareholder of the parent company cannot have a cause of action to bring a derivative suit against the directors of its subsidiary company. The 2013 Commercial Act Amendment strengthened the shareholders’rights of a parent company by introducing the multiple derivative suits. The multiple derivative suits are a subject of controversy, however, as different perspectives regarding the legal permission for the execution of such suits exist. Some scholars are worried that the government will introduce the multiple derivative suits because they could possibly violated legal personalty. Some do not agree with the codification of the prerequisites of multiple derivative suits. However, for the protection of shareholders and the maximization of corporate profit, the multiple derivative suits of shareholders of a parent company need to be activated through proper legislative improvement for their application and effectiveness. This paper suggested the introduction of the multiple derivative suits and the necessity of the legislation from the view point derived from the interpretation of the amendment, comparing the foreign multiple derivative suits such as those of USA and Japan. The multiple derivative suits are necessary for the protection of the parent company shareholders’rights, and could potentially provide the compensation for parent company’s consequential damages.

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