중국 개정 회사법상 다중대표소송에 관한 연구 - 한국 다중대표소송과의 비교 연구를 중심으로 -

The multi-derivative litigation system is an institutional mechanism that allows a parent company’s shareholder—rather than a subsidiary’s shareholder —to file a lawsuit on behalf of the subsidiary when the subsidiary incurs damages due to unlawful acts committed by its directors or officers within a corporate group. Unlike the traditional derivative action, which presumes a single corporate entity, this system is characterized by its complexity, as it encompasses multiple entities, intricate governance structures, and multilayered legal relationships. This study analyzes the legislative backgrounds and regulatory frameworks of multi-derivative actions adopted in South Korea and China from a comparative legal perspective. It examines key differences between the two systems and proposes policy recommendations for improving the effectiveness of the multi-derivative litigation regime introduced in the 2023 amendment to China’s Company Law. South Korea has actively adopted the system and expanded its scope to include triple or even higher-level derivative actions, which has resulted in numerous interpretative issues, particularly with respect to standing and procedural requirements. In contrast, China permits multi-derivative actions only within the confines of the existing derivative litigation structure, thereby limiting the institutional independence of the regime and failing to adequately reflect its unique characteristics. To reflect the reality of modern corporate groups with multilayered ownership structures, the scope of application must be extended beyond double derivative actions to include triple derivative actions. In addition, clear standards have yet to be established regarding key elements such as shareholder standing, the scope of defendants, and pre-suit demand requirements. These gaps will likely be addressed through future judicial interpretations by the Supreme People’s Court or legislative revisions. Lastly, since China currently applies the procedural framework of general derivative actions to multi-derivative litigation without modification, the unique features of the system are not sufficiently reflected. To avoid duplicative litigation and address necessary procedural issues such as third-party participation, it is desirable to establish independent procedural rules tailored specifically to multi-derivative actions.