주주대표소송에서 제소청구의 범위와 관련 논점

Scope of Requests and Related Issues in Representative Suits by Shareholder: Focusing on the Supreme Court 2021. 7. 15. Sentence 2018da298744

In Article 403 of the Commercial Act, a claim for damages against a director is requested by a shareholder to the company prior to the filing of a representative suit. If the company that received the shareholder's request does not file an action for prosecution against the director within 30 days, the shareholder who requested may immediately file a shareholder representative action. Therefore, the content of the request is closely related to the cause of the claim in the shareholder representative suit. In this regard, if the cause of the claim is formed with different contents from the request, or if such a claim is combined with the existing claim, it is questionable to what extent the cause of the claim, which is different from the content of the request, will be considered legitimate. In the target judgment, if “the cause of liability is the same but only the legal evaluation is different,” the cause of the claim for representative litigation different from the claim for request was considered legitimate. Given that a request is a requirement for a shareholder representative lawsuit, which is a type of civil lawsuit, or that the main problem is an additional change to another cause not indicated in the request, it is reasonable to take ‘identity of claim basis' in Article 262(1) of the Civil Procedure Act as the criterion for primacy and apply it by analogy. According to the precedents, if the contents of the request are based on the ‘dispute concerning the same life facts or the same economic interests’, even if the cause of the claim in the representative suit is somewhat different from the description in the request, the claim meets the requirements for filing. In addition to the above issues, this article also looked at the possibility of remedying the defects, if a shareholder representative lawsuit is filed while the request is defective and the issue of who to designate as the counter party to the request.