주주총회 결의하자소송의 하자사유에 관한 입법론적 고찰 - 독일 주식법과의 비교법적 검토 -

It is well known that Shareholder Resolution lawsuits(hereinafter “SR Lawsuits) serve as an important remedy in civil law jurisdictions. The rules on SR lawsuits, however, vary widely even among civil law countries such as Korea, Japan and Germany. Those rules are not identical between Germany and Korea. The purpose of this paper is to examine the law of SR lawsuits in Korea in comparison with German law and from a broader comparative perspective. This paper proceeds as follows. First, to set a stage for our discussion of SR lawsuits in Korea, we set forth a short sketch on historical development of the rules of SR lawsuits in Germany, Japan, and Korea, especially focusing on the grounds for three types of SR lawsuits; rescission lawsuits, nullity lawsuits, and non-existent lawsuits(II). Second, we then discuss some of the salient features of German law on SR lawsuits in comparison with Korean law(III). Finally, we conclude with a few remarks about revision of rule of SR lawsuits in Korea (VII). As for a dividing line between rescission and nullity lawsuits, we want to make one observation. In Korea, to distinguish between nullity and rescission lawsuits based on the nature of defects as in Korea is certainly straightforward and easy to implement. A weakness of this approach lies in its lack of flexibility. A procedure defect, however, is less problematic in terms of rigidity because it may lead to an non-existence law suit if it is regarded as too serious. On the other hand, rigidity may matter in the case of substance defect. If the substance defect involved is not so material, it may be better to treat them as a ground for rescission, which is subject to requirements such as statute of limitation and discretionary dismissal. It may be better for Korea to follow the German approach in this respect by treating a substance defect as a ground for rescission, if the law alleged to be violated relates to the interest of minority shareholders, rather than that of third parties or the general public. Under this new approach, violation of the principle of equality of shareholders, for example, is to constitute a ground for rescission, rather than nullity.