이중대표소송제도의 도입방안에 대한 소고

Along with Korean economy’s high growth during the recent a half century, corporate groups have emerged. Historically it can be contributed to two factors. One, the holding company entity system was introduced to Monopoly Regulation and Fair Trade Act in 1999. The other, newly added provisions for comprehensive exchange and transfer of shares in the Korean Commercial Code in 2001. Since then the number of corporate groups which reorganize their governance structure into that of holding company is increasing at a high growth rate. If this growth will continue, the holding company will be the most common type of business entity in Korea. Parent and subsidiary companies belong to the same corporate group are legally independent of each other although they are considered as one, not as separate ones with regard to economic concerns. Therefore, the minority shareholders of the parent corporation cannot hold directors of the board of the subsidiary company accountable to any loss incurred to the subsidiary company as a result of their unlawful conducts and mismanaging company affairs. There is, however, a way to solve this problem although it is limited in the case when the subsidiary is not listed, by the minority shareholders of the subsidiary company holding the directors accountable through a derivative suit. For this reason, the double derivative suit should be allowed to protect the rights of the minority shareholders of the parent corporation. Although its implementation in practice can be carried by the sentences of the court of law, it behooves to revise the commercial law instead because the supreme court did not accept the way of sentencing. On the other hand, a subsidiary company is generally more likely to be managed not for its profits, but rather for that of the corporate group to which it belong. As a result, it is natural for such ones as how to protect the minority shareholders and creditors in the subsidiary to arise as legal issues. Since a double derivative suit is just one way of solution regarding legal issues related to the corporate group, there should various measures to be made together to protect interest groups such as the minority shareholders of the subsidiary company and its creditors.