2013년 상법상 다중대표소송 도입안에 관한 비교법적 검토

As of July 2013, two lawmakers submitted proposals to introduce a multiple derivative suit into the Korean Commercial Code to the National Assembly and, in addition, the Ministry of Justice opened a preliminary proposal on allowing the above kind of suit to be commenced under the Code to the public. These proposals have several things in common. These common things are as follows: First, the law of the multiple derivative suit is to be applied to the parent and the subsidiary corporations. Second, a shareholder of the parent corporation who has at least 1% of its total outstanding shares can bring a derivative suit against wrongdoers of its subsidiaries. Third, as a result of application of Article 342-2(3), triple derivative suit may be allowed if the above proposals are passed through the National Assembly. Since a multiple derivative suit is witnessed in many foreign countries, the trend toward allowing this kind of derivative suit is becoming increasingly common. However, in order to mitigate the conflict of interests between shareholders of parent and subsidiary corporations, very strict requirements should be fulfilled before the court grants the plaintiff leave to continue the suit, and only the suits to derivatively enforce a claim belonging to a subsidiary that is wholly owned are allowed in the State of Delaware, England, and Hong Kong, etc. Korean lawmakers' and government's proposals do not pay attention to the fact that a shareholder who will act on behalf of the parent corporation is allowed to commence a multiple derivative suit.