다중대표소송의 도입에 관한 법적 연구

A number of bills allowing multiple derivative action had been pended and are also pended at the National Assembly. The stockholder derivative action is an important and unique feature of corporate governance. In such a suit, a stockholder asserts a cause of action belonging to the corporation. In a multiple derivative action, a stockholder of a parent corporation seeks recovery for a cause of action belonging to a subsidiary corporation. By its nature a multiple derivative action is one brought by a shareholder of a parent corporation to enforce a claim belonging to a subsidiary that is either wholly owned or majority controlled. Normally, such a claim is one that only the parent corporation is empowered to enforce. Cases may arise, however, where the parent corporation’s board is shown to be incapable of making an impartial business judgment regarding whether to assert the subsidiary’s claim. In those cases a shareholder of the parent will be permitted to enforce that claim on the parent corporation’s behalf. Increasing use of a holding corporation gives rise to the issue of whether a shareholder in a parent corporation may bring a derivative action against the directors and officers of its subsidiaries on subsidiaries’ behalf. In Korea, the debates of scholars have been begun after the Korean Supreme Court dismissed a double derivative action in 2004 on the ground that a shareholder in a parent corporation lacked standing. It is reasonable to accept the multiple derivative action to protect the interest of shareholders, especially in the conglomerates. The multiple derivative action is effective for the purpose of enforcing the liability of the director and officer when the holding corporation don’t file a suit against the liability of a subsidiary’s director and officer, and the subsidiary would not file a suit against the liability of the director and officer, the shareholder of controlling corporation files a suit against the liability of the subsidiary’s director and officer. The multiple derivative action would make an important role on shareholder’s protection in the conglomerates and contribute to improving corporate governance.