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천경훈, Multiple Derivative Actions: Debates in Korea and the Implication for a Comparative Study (2019)

아태법
2021-02-05
조회수 271

천경훈, "Multiple Derivative Actions: Debates in Korea and the Implication for a Comparative Study", Berkeley Business Law Journal, Vol. 15, Issue 2 (2019), pp. 306-336.

<Abstract>

A double or multiple derivative action has attracted little academic attention in US for decades. In Korea, after the Korean Supreme Court dismissed a double derivative action in 2004 on the ground that a shareholder in a parent company lacked standing to sue on behalf of its subsidiary, this issue has attracted much interest both academically and politically. Since many large business groups, or chaebols, in Korea now use a multi-layered holding company structure, multiple derivative actions are perceived as a means to regulate the management of unlisted subsidiaries which is insulated from the pressure of stock market. In 2016 and 2017, a number of bills that attempt to allow double or multiple derivative actions in varying scopes were submitted to the National Assembly of Korea. After an analysis of those bills and a comparative review of the laws of a few jurisdictions, this article presents a few questions to be considered before legislation and provides some answers to those questions. First, a double or multiple derivative action is justified because it may compensate harmed shareholders and deter possible wrongdoing to subsidiaries. It is irrelevant to resort to the doctrine of “piercing the corporate veil” to justify it. Second, a standard derivative action against the directors of a parent company for failure to monitor a subsidiary’s management or for failure to seek proper remedies cannot be a satisfactory alternative to a double or multiple derivative action, considering the difficulty of proving causes of action and assessing the damages. Third, double or multiple derivative actions need not be limited to situations in which the subsidiary is wholly owned or in which there is no one else who can sue. Fourth, before bringing an action, it would be sufficient to first demand that the subsidiary bring a suit, without needing to demand that the parent bring a standard derivative suit. Considering the increasing use of a multi-layered holding company structure, double or multiple derivative actions will be more and more important to recover the losses of a subsidiary and deter wrongdoing that may be committed at the level of subsidiaries.

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