주주대표소송에서의 화해에 관한 비교법적 소고

The shareholder derivative suit under the Korean Commercial Code (hereinafter “KCC”) is modelled after that on the American law. Settlement refers to an official agreement that finishes a litigation between the plaintiff and defendant and is regarded as an alternative dispute resolution. Since a shareholder brings the derivative suit in place and stead of the corporation, the plaintiff does not have authority to dispose of the suit as he likes. In Korea, views are divided regarding whether the plaintiff can enter into settlement agreement with the plaintiff. Under the KCC, on-trial settlement between parties to the litigation is possible if there is a court’s permission. Pretrial settlement between the plaintiff-to-be and the defendant-to-be is not allowed under the KCC. A court’s permission is required to withdraw the litigation as result of settlement agreement entered into outside trial. If the corporation is judicially involved in the derivative suit, it is possible for the corporation to settle the suit with the defendant only when the parties to the suit want to settle the suit. On the stage of pretrial, if the plaintiff has the corporation involved in the procedure of settlement, the effect of the settlement goes to the corporation. The corporation can settle the suit with the defendant outside the court and withdraw the suit if the court permits. In Korea, the court’s standard to permit settlement is quite complex and thus the plaintiff does not have incentive to conclude his derivative suit through settlement while most derivative suits are settled in the United States. In Korea, shareholders will file more derivative suits than now if the parties to the litigation can enter into settlement with ease.