법상 주주대표소송의 한계와 다중대표소송제도의 실효성

There are two ways of suit to protect shareholders, those are Shareholders’ Derivative Suit and Multiple Derivative Suit. It is very important point at issue to solve the problem among shareholders’(esp. between majority and minority) interest conflict in corporate group management. By now, korean Commercial Law have regulated a single entity[corporation] respectively and solved to arrange the restriction about acquisition of a mother company by subsidiaries, moreover given the right to check subsidiaries by the audit of a mother company. However the regulations on the Commercial Law have the limit in protecting minority, because general meeting and board of directors can't function appropriately in the corporate groups. And the (chief)director of a mother company should file a suit against the director’s negligence to a subsidiary in corporate groups, but the subsidiary is controlled by a mother company and also the mother company is controlled by a majority. In this point of view, it is not easy for the director of a mother company to file a suit against a subsidiary. In a corporate group on controlling and subordinated[herrschend und abhängig] relationship, basically a controlling(holding) company and subsidiaries have an independent entity. However the management of the company becomes managed by the controlling company itself or the majority of the company. Because of director’s preferring to get the interest of whole corporate groups in the corporate management, the interest of a single company as a member of corporate groups becomes infringed. Therefore to solve these problems, it is reasonable to accept the shareholder’s double derivative suit to protect the interest of shareholders. Shareholder’s multiple derivative suit has been said that when the controlling company didn’t file against the liability of a subsidiary's director, and the subsidiary wouldn’t file a suit against the liability of the director, as the subsidiary’s representative, the (minority)shareholders of controlling company file a suit against the liability of the subsidiary’s director. Since 2013, Korea has tried to introduce multiple derivative suit to keep from the illegal behavior of a director and protect the shareholder’s interest in a mother(holding) company. In the range of the regulation, according to the shareholder’s co-controlling theory it could be approved widely, but above all it must decide to approve the relationship between a mother company and a subsidiaries. And also the bill applies(fits) §403, §406 when the shareholder who is minority(holds over 1/100) files a suit against the liability of a director(§406 of 4 draft). After all, I think the multiple derivative suit makes effective on shareholders’ interest and an important role on shareholder’s protection in corporate groups. Therefore the interest created by subsidiaries would distribute to the stakeholder appropriately due to this regulation and also in the future, the suit would contribute to corporate advancement in the corporate group management in Korea.