주주대표소송의 승소판결에 의한 강제집행

Recently, several judgements acknowledging director liability arising from a shareholder derivative suit necessitates a study on how to enforce the judgement in a shareholder derivative suit. The plaintiff in a derivative suit is a shareholder, but the order of the judgement is issued in favor of a third party-i.e., the corporation. Thus the plaintiff and the party to receive the benefit of the judgement of the suit are different. This creates a problem when the enforcement of the judgement is sought after the suit has become final. The problem is this: which party, the shareholder or the corporation, is entitled to enforce the judgment.. The corporation, as the recipient/beneficiary of the judgement, can legally enforce it, but it is practically unlikely that the corporation will actively engage in enforcement it has a special relationship with the defendant director. Thus, in order to secure the effectiveness of the shareholder derivative suit, many have demanded that the shareholder plaintiff have the right to enforce it. This article addresses two issues: (1) whether a plaintiff shareholder in a shareholder derivative suit has the capacity to the judgment and, (2) if so, which method of enforcement should be used. Past court opinions and relevant practice show several views of these two issues. One view is that because a shareholder is the plaintiff in the derivative suit, though he is a third party in terms of enforcement, he has automatic standing to enforce the judgment as in monetary enforcement procedure. Another view is that the plaintiff shareholder cannot enforce the judgment because neither does he have a standing to enforce it nor is there statutory provision which enables him to enforce it. This article, after reviewing whether the plaintiff shareholder has standing to enforce the judgement mostly from perspectives of res judicata,enforcement capacity, and the right of disposal and management, posits that the plaintiff shareholder’s attempt to enforce the judgment may cause complications and confusion due to potential problems in the current enforcement procedure law. Because the Civil Enforcement Act does not anticipate this kind of case--i.e., one where the successful plaintiff in a suit and the rightful judgment creditor are different persons--the plaintiff shareholder’s attempt to enforce the judgment does not harmonize with the current law and an alternative method or amendment to the law is necessary.