이사에 대한 주주의 직접소송과 대표소송의 구별 기준 - 델라웨어주 판례법을 중심으로 -

The means by which a shareholder can claim damages against a director can be broadly classified into direct suits based on Article 401 of the Commercial Act and derivative suits based on Article 403 of the Commercial Act. Regarding the damages suffered by shareholders that can be the respective subjects of direct and derivative suits, there is a divergence of opinions in academia. The prevailing view is that indirect injury to shareholders can also be the subject of a direct suit, while case law distinguishes that direct injury to shareholders can be claimed through a direct suit, while indirect injury can be claimed through a derivative lawsuit. However, there has not yet been much discussion on the specific criteria for distinguishing between direct and indirect injury. Regarding the criteria for distinguishing between direct and derivative suits as means for holding directors accountable, the case law of Delaware, which is highly regarded as a place for company incorporation in the United States, can be an important reference. In the 2004 Tooley v. Donaldson, Lufkin & Jenrette, Inc. decision, the Delaware Supreme Court presented a simple two-part test consisting of: (1) who suffered the harm, and (2) who would receive the remedy. According to this Tooley test, a shareholderʼs claim due to dilution of shares from an unfair issuance of new shares is classified as a derivative claim and thus subject to a derivative suit. However, in the 2006 Gentile v. Rossette decision, it was recognized that in cases of expropriation of the economic value and voting rights of shares due to conflicts of interest between controlling and minority shareholders, direct injury to shareholders is acknowledged, allowing for direct suits. Subsequent conflicting rulings expanded and limited this exception, undermining legal stability. In the 2021 Brookfield Asset Management, Inc. v. Rosson decision, the Delaware Supreme Court changed the precedent set by Gentile v. Rossette, declaring that the exception would no longer apply and reaffirming the Tooley test principles. However, it also ruled that in exceptional cases, such as change of control, direct suits by shareholders would be allowed. Delaware case law can be meaningful in discussions of shareholder litigation principles and the expansion of directorsʼ duty of loyalty currently ongoing in Korea. Even in cases where share dilution due to unfair issuance of new shares is at issue, and there is a conflict of interest among shareholders or where directors act for the benefit of specific shareholders, Delaware case law does not permit individual shareholders to directly claim damages from directors. This results in Delaware recognizing directorsʼ duty of loyalty to shareholders while not allowing shareholders to directly exercise claims for breach of these duties. However, considering differences between Delaware and Korean corporate law regarding the effectiveness of derivative lawsuits and the extent to which courts pierce the corporate veil, it may be necessary in Korea to allow direct claims for damages by shareholders against directors under Article 401 of the Commercial Act in special circumstances, such as in close corporations.