지배회사 주주의 종속회사 회계장부열람권 - Weinstein Enterprises, Inc. v. George D.Orloff -

Shareholders are entitled to elect the board of directors, vote on major issues, file derivative suits, and inspect the corporation's books and records. Among other things, in an age where even simple corporations are likely to have one or more subsidiaries, the right to inspect books and records, raises an interesting question. The Delaware code(2003) and the supreme Court recently had an opportunity to address this issue in Weinstein Enterprises, Inc. v. Orloff. Shareholder of Delaware corporation sought to inspect its documents and documents of New York corporation of which the Delaware corporation was the largest shareholder. The Supreme Court held that the New York corporation was a “subsidiary” of the Delaware corporation within the meaning of statute entitling shareholder to inspect documents of subsidiary of corporation, but the shareholder could be entitled to inspect books and records of New York corporation only if the Delaware corporation had an actual ability to exercise control and thereby cause the New York corporation to produce the documents that are not in the Delaware corporation's possession. The Delaware Supreme Court Reversed and remanded Chancery Court's order,saying that the latter court improperly ordered Delaware corporation to produce for inspection documents in New York corporation's possession and control. The Delaware corporate code dispenses with the difficulties of finding the right in the common law by explicitly conferring a right to inspect the books of a subsidiary. The Delaware court, instead of alter ego analysis, examined control by looking at the parent's percentage of ownership in the subsidiary and its actual power to effect change at the subsidiary by exercising its own rights as a shareholder. It stressed the importance of determining whether the parent company had enough voting power to elect directors that could, in turn, control the subsidiary. It is very important that the court drew a sharp distinction between the parent's ability to control as a shareholder and its ability to control the day-to-day operations of the subsidiary. We think that Korea would also be best served by following Delaware's inspection statute to allow the shareholders of a corporation to inspect the books and records of that corporation's subsidiaries.