2020년 개정상법상 다중대표소송의 비판적 검토

In general, derivative suit refers to a lawsuit filed by a shareholder to investigate the responsibility of a director on behalf of the company when the company neglects to investigate the responsibility of the director (Commercial Act §403). Since the original shareholder has only a general and abstract interest in the company's property, the company's external rights cannot be exercised directly or on behalf of the company. Nevertheless, the reason why the Commercial Act permits the representative action to shareholders is that the company's rights remedies may be neglected due to the special relationship of the debtor as a director. However, in relation to derivative suit, the possibility of allowing double derivative suit has been debated for a long time. In the parent company relationship due to mutual ownership of stocks, the shareholders of the parent company cannot directly hold the directors of the subsidiary liable even if the director of the subsidiary commits an illegal act, causing damage to the company and the damage also affects the parent company. there is no Legally, the parent company and its subsidiaries are independent legal entities. Thus, from the 19th National Assembly to the 21st National Assembly, the amendment to the Commercial Act was proposed to introduce double or multiple derivative suit, in the Commercial Act amended in 2020, Article 406-2 on Multiple derivative suit was newly added. However, there are still many controversies from the time the introduction of multiple derivative suit was discussed. Therefore, in this thesis, the main contents of multiple derivative suits were reviewed, the problems contained in it were identified, and the following improvement measures were suggested. That is, 1) the scope of inclusion of parent and subsidiary companies subject to application should be clarified, but only triple representative litigation should be recognized in consideration of Article 342-2 on the regulation of reciprocity. 2) The criteria for judging a parent company should be based on a wholly parent company rather than a control-subordination relationship as it is now. 3) Since the concept of “holding” is controversial in relation to the share requirements of shareholders of listed companies, the concept of “ownership” should be unified. 4) It should also allow shareholders to file a complaint electronically. 5) Considering that there are many matters that need to be looked into in detail, such as whether a subsidiary meets the share requirements of the parent company, in a multiple- representative litigation, the cooling period of 30 days is too short, so it should be extended as in foreign legislative cases. 6) If there is a risk of irreparable damage to the company, the contents of the statement and the part related to the proof must be supplemented. 7) Article 406-2 (4), which causes a very unfair problem in multi derivative suit, shall be promptly deleted. 8) When the share of a subsidiary owned by the parent company decreases to 50% or less of the total number of issued shares It should be interpreted as including, but should be supplemented by legislation in the future.