회사가처분소송에서의 보전의 필요성 판단기준에 관한 소고

Corporate litigations involve multi-interest disputes among relevant parties such as minority shareholders and corporate managers. Since most corporate disputes have a tendency to settle after a court issued a preliminary injunction, the preliminary injunction with regard to corporate litigation(hereinafter referred to as the “Corporate preliminary injunction”) practically functions as a final legal resolution to resolve corporate disputes. For this reason, it has been raised concerns among scholars and practitioners to reduce a possibility of wrongful preliminary injunction by the court. They empathize the enhanced necessity for issuing a Corporate preliminary injunction. However, the Korean Civil Act(hereinafter the “KCA”) and the Korean Civil Execution Act(hereinafter the “KCEA”) are silent on the standard of the necessity for issuing a preliminary injunction. Thus, courts have a broad discretion to decide whether a pending Corporate preliminary injunction case have necessity for issuing the Corporate preliminary injunction as one of a preliminary injunction. In addition, courts impose a movant for a Corporate preliminary injunction more strong burden of proof of necessity for issuing a preliminary injunction than as requested in the KCA and the KCEA. As a result, there is a highly probability that courts might exercise an abusive discretion. Considering the above, such judicial discretion should be regulated by the explicit standards in the law. For this purpose, the factors, such as “a likelihood of success on the merits, the public interest and so forth”, treated as primary factors by the Korean Supreme Court, should be excluded when a court consider whether the necessity for issuing a preliminary injunction is proven or not, because such factors are the same as of “discretional dismissal of the court”on the merits. More specifically, the KCEA should be amended to facilitate the above. Also, the request of more strict burden of proof by the movant in a preliminary injunction is not permissible under the KCA and the KCEA, considering the basis of preliminary injunction as an immediate legal protection of the movant. For this reason, it is appropriate that the KCEA should be amended to facilitate the above. To balance the movant’s need for immediate and provisional relief and the respondent’s need for protection against a wrongful preliminary injunction including Corporate preliminary injunction, it seems to be adequate that the bond requirement in the KCEA should be amended to facilitate the consideration on the basis of bond or security under the KCEA and that of the U.S. preliminary injunction.