주주대표소송과 제소청구 - 미국법과의 비교를 중심으로 -

According to § 403 Commercial Law, a shareholder must make a demand upon the board of directors prior to bringing a derivative suit. The purpose of demand requirement is to assure compliance with the most fundamental principle of corporate governance that the board of directors runs corporation. The law requires a demand in order to give the board of directors an opportunity to decide whether the corporation should bring the suit which the shareholder urging. According to US case law, if the plaintiff goes ahead and demands that the directors have the corporation bring a lawsuit, and the directors refuse, courts generally treat such a decision as a business decision, that is, they apply the business judgement rule. The court will defer to the directors’ decision not to sue unless the plaintiff can show a conflict of interest, a lack of good faith, or breach of duty of care. There is no precise rule as to how much time the board of directors must be given to respond to a demand. The court test of the time limit in a particular situation is the reasonableness under the circumstances. According to § 403 Commercial Law, demand requirement is prerequisite to commence a derivative proceeding. Suppose a shareholder plaintiff commence a derivative proceeding without demand on corporation, it should be dismissed, even though 30-day is already passed without respond of the corporation. The Supreme Court is holding that the purpose of demand requirement is preventing strike suits, and that is tied to demand adequacy. But preventing strike suits is a not the purpose of demand requirement but a function. As just pointed out, the purpose of demand rule is to reflect the fundamental principle of corporate law that the board of directors ordinarily has the responsibility to manage the corporation, including whether or not the corporation should bring a lawsuit. A demand is adequate if it satisfies that purpose. The Supreme Court is holding that a demand must identify the alleged wrongdoers, describe the factual basis of the wrongful acts. I agree to it’s conclusion. According to § 403 Commercial Law, the waiting time, the time between demand and filing of suit, is 30-day period. It is too short for corporation to inquiry alleged wrongdoing and decide to take action against the alleged wrongdoers. The corporation does not have to respond to the shareholder’s demand, because courts do not review the auditor’s decision not to sue. But the purpose of a demand is to alert the board of directors so that it can take corrective action. Therefore, the demand system of the Commercial Law should be reformed. Firstly, the waiting period is extended to 90-day period like MBCA. Secondly, A special litigation committee should be installed as a subcommittee of a corporation’s board of directors pursuant to corporation’s bylaw that has the power to decide whether or not the corporation should bring a lawsuit against members of the board. Thirdly, Courts should review the auditor’s demand refusal and could dismiss the complaints for the best interest of corporation and shareholders.