二重代表訴訟의 許否에 대한 比較法的 檢討 - 서울고등법원 2003.8.22. 선고, 2002나13746 판결을 대상으로 하여 -

• 영문명: A Comparative Review of Whether a Double Derivative Suit is Recognized under the Current Laws of Korea
• 발행기관: 한국사법학회(구 한국비교사법학회)
• 저자명: 권재열(Jae-Yeol Kwon)
• 간행물 정보: 『비교사법』비교사법 제11권 2호, 443~475쪽, 전체 33쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2004.06.01

영문 초록

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.

목차

Ⅰ. 서 론

Ⅱ. 서울고등법원 판결의 소개 및 의의

Ⅲ. 서울고등법원 판결의 비교법적 검토

Ⅳ. 결 론

참 고 문 헌

【ABSTRACT】