이중대표소송의 도입에 관한 고찰

• 영문명: A Study on Introduction of Double Derivative Suit
• 발행기관: 한국사법학회(구 한국비교사법학회)
• 저자명: 염미경(Mi-Kyung Yum)
• 간행물 정보: 『비교사법』比較私法 제13권 제4호, 467~503쪽, 전체 37쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2006.12.01

영문 초록

  In the States, courts have permitted double derivative suits by the reason of piercing the corporate veil, common control, fiduciary theory, agency theory and specific performance theory. On the other hand courts have espoused two principal theories in opposition to derivative suits. The first theory is that double derivative suits are unnecessary because alternative remedies exist. The second reason is that shareholders do not satisfy contemporaneous ownership requirement.
  Legal scholars suggest that double derivative suits have two policy purposes: compensation and deterrence of wrongdoing by directors of subsidiaries like single derivative suits. Double derivative suits may prove of greater importance in deterring wrongdoing to subsidiary corporations than single derivative suits. Because the presence of an extra corporate layer reduces the likelihood that shareholders will detect the wrongdoing.
  Korean Corporate Law does not have a regulation on double derivative suit, so it is controversial whether double derivative suit is permitted under Korean Corporate Law Article 403 which is supposed to regulate single derivative suit. But under Article 403 double derivative suit could not be permitted because it means disregarding the existence of two corporate entities - a subsidiary and a parent corporation. Thus it is desirable that to introduce double derivative suit by Korean Corporate Law. When it introduce double derivative suit, a few points are to be considered as follows: first, it is reasonable to permit double derivative suit between parent corporations and subsidiaries. But it should be examined seriously to extend double derivative suit to corporations that have de facto controlling interest. Second, Information on subsidiaries including minutes of board and shareholders" meeting should be available to shareholders of parent corporations so as to detect the wrongdoing of directors of subsidiary. Third, the procedure of double derivative suit should be more clear.

목차

Ⅰ. 서론
Ⅱ. 외국의 입법례와 판례
Ⅲ. 이중대표소송 허부에 관한 미국법상의 논의
Ⅳ. 상법상 이중대표소송의 허용여부
Ⅴ. 이중대표소송의 도입에 관한 상법개정시안에 대한 검토
Ⅵ. 맺음말
【참고문헌】
【Abstract】

키워드

이중대표소송 단순대표소송 지배회사 종속회사 손해전보 부정행위억제 사실상의 지배이익 Double Derivative Suit Controlling Corporation Subsidiary Compensation Deterrence De Facto Controlling Interest