이사의 횡령행위, 부실공시로 인한 손해에 대한 주주의 배상청구의 가부 －상법 제401조의 손해의 개념을 중심으로－

This article deals with one of the most important and hotly-debated issues regarding section 401 of the Korean Commercial Code(hereinafter "KCC"). If a corporation is harmed by the violations of the director’s duty of care or duty of loyalty, shareholders may suffer the economic consequences in the form of a reduction in the value of their shares. In such case, shareholders may want to sue the directors for their damages. Can a shareholder recover a her loss resulting from a loss suffered by the corporation? The Korean Supreme Court’s answer to this question is that shareholder can’t recover her reflective loss under the section 401 of KCC. The Court has recently decided the same rule in 2010Da77743Ho. In most core jurisdictions including US, UK, Germany, France, and Japan, the basic rule has been the same, i.e. a direct claim for damages by the shareholder, to be paid to herself, is not allowed. The harm is only a reflection of the corporation’s loss, so the corporation should be the only party entitled to recover. This‘no reflective rule’is often based on the two policy reasons: one is the protection of creditors, and the other is the risk of double recovery or double jeopardy for the director. However, the distinction between direct loss/damage and indirect(or reflective) loss/damage is not that clear. In addition to, in certain cases, both a corporation and it’s shareholders, suffer simultaneously from damages by the same wrongdoing or violations of the directors. Furthermore, derivative suit could not be that efficient in some situation, e.g. where the corporation is controlled by the controlling shareholder in closely-held corporation. Thus, it is controversial whether there can be exceptions to this ‘no reflective rule’. Hence this article answers the question whether shareholders should be able to claim reflective loss, and under what conditions, from a comparative law perspective, focusing on Japan, UK, Germany, and France.