주주대표소송에서의 다른 주주의 소송법상 지위

The Legal Status of Other Shareholders in Shareholder Derivative Lawsuits This paper examines ① the structure and legal nature of shareholder derivative lawsuits, ② the subjective scope of the effect of a confirmed judgment in a shareholder derivative lawsuit, specifically whether the confirmed judgment in a shareholder derivative lawsuit extends to other shareholders, ③ whether a shareholder filing the same liability claim during a shareholder derivative lawsuit constitutes a duplicate lawsuit, and ④ whether shareholders other than the shareholder who filed the shareholder derivative lawsuit can participate in the derivative lawsuit, and if so, what form that participation takes. (1) The structure and legal nature of a shareholder derivative suit is essentially litigation charges prescribed by law that the right to conduct litigation(management and disposition rights) is granted by the provisions of the Commercial Act to a third-party shareholder who filed the lawsuit, not the company, which is the subject of the rights relationship and has a legal interest in the existence of the rights relationship that is the subject of the suit. And shareholder derivative suits are a parallel type in which a third party has the right to file a lawsuit together with the subject of the rights relationship. Under our Commercial Act, the representative party lawsuit nature is very weak. (2) Regarding the effect of a confirmed judgment in a shareholder derivative suit on other shareholders, the opinion was presented that the res judicata of the judgment received by the filing shareholder, as the litigator, does not extend to other third-party shareholders other than the company, which is the subrogated party. (3) Regarding whether a shareholder filing a lawsuit seeking the same liability during a shareholder derivative suit constitutes a duplicate lawsuit, the author presented the view that in this case, the subsequent lawsuit was filed while the previous lawsuit was still in progress, and although the claims(subjects of litigation) in the previous and subsequent lawsuits are the same, the parties to the previous and subsequent lawsuits cannot be said to be the same, so it does not constitute a duplicate lawsuit. (4) The author presented the following views regarding whether other shareholders, other than the shareholder who filed the shareholder derivative suit, can participate in the derivative suit and, if so, the form of participation. (a) If another shareholder who satisfies the requirements for filing a joint lawsuit participation during the pendency of the shareholder derivative suit, the filing of the derivative suit in the previous lawsuit does not deprive the other shareholder's standing as a party, and joint lawsuit participation is permitted because it is a case that requires unified conclusion. Furthermore, the requirement for a unified conclusion is sufficient if the content of the judgment needs to be uniformly and without contradiction for all joint litigants, and it is not necessarily the case that the judgment has effect between the defendant and the participant. (b) Only third parties subject to the effect of a judgment meet the requirements for joint litigation assistance participation. However, since the effect of judgment received by the plaintiff shareholder does not apply to other shareholders, other shareholders cannot participate in the shareholder derivative suit as joint litigation assistance participation. (c) When a plaintiff shareholder files a derivative suit against a director, the profits resulting from the lawsuit belong to the company. The possibility that the shareholder's dividends will increase in the future due to an increase in the company's assets is merely a factual and economic interest and does not directly affect the shareholder's legal status or rights and obligations. Therefore, other shareholders cannot participate in the shareholder derivative lawsuit.