목차

1. 제1장 서론 ··················································································································· 1
   제1절 연구목적 ······································································································· 1
   제2절 연구의 방법 및 범위 ················································································· 4
   제2장 다중대표소송제도 현황 및 기본적 고찰 ···················································· 7
   제1절 서 설 ············································································································· 7
   제2절 주주대표소송의 개념 및 현황 ······························································ 10
   I. 주주대표소송의 개념 ················································································· 10
   1. 주주대표소송의 의의 및 연혁 ······························································ 10
   2. 우리나라 주주대표소송의 도입 ···························································· 13
   3. 주주대표소송의 변화과정 ······································································ 15
   II. 주주대표소송 현황과 한계 ········································································ 18
   1. 주주대표소송 현황 ·············································································· 19
   2. 원고의 특성에 따른 소송 현황 및 판결 현황 ··································· 21
   3. 주주대표소송의 한계 ·············································································· 28
   제3절 다중대표소송의 개념 및 도입 찬반 논의 ············································ 30
   I. 다중대표소송의 개념 ················································································· 30
   II. 다중대표소송제도 도입 찬반 논의 ·························································· 33
   1. 다중대표소송 도입의 긍정적 견해 ······················································ 33
   2. 다중대표소송 도입의 부정적 견해 ······················································ 42
   III. 우리나라의 판례와 학설 ··········································································· 49
   1. 대법원 2004. 9. 23. 선고 2003다49221 판결. ································ 49
   2. 다중대표소송제도의 학설 ······································································ 57
   IV. 상법 개정논의 경과 및 적용요건의 중요성 ········································· 67
   제3장 각국의 다중대표소송제도 입법례 ······························································ 70
   제1절 서설 ············································································································· 70
   제2절 미국 ············································································································· 72
   1. 다중대표소송의 연혁과 법리 ···································································· 72
   2. 미국 다중대표소송의 요건 ········································································ 83
   3. 미국의 판례와 입법 현황 ·········································································· 91
   제3절 영국 ·········································································································· 102
   1. 보통법상 대표소송과 판례 ······································································ 102
   2. 2006년 회사법 개정과 다중대표소송 ··················································· 107
   제4절 독일 ·········································································································· 110
   1. 독일의 기업구조와 소송강제절차 ·························································· 110
   2. 2005년 주식법 개정과 대표소송제도 도입 ·········································· 113
   3. 콘체른 기업에서 소수주주 보호와 판례 ·············································· 116
   제5절 프랑스 ······································································································ 120
   1. 회사소권의 개별적 행사 ·········································································· 120
   2. 다중대표소송의 도입 여부와 판례 ························································ 122
   제6절 일본 ·········································································································· 128
   1. 일본 다중대표소송제도의 도입 논의와 판례 ······································· 128
   2. 다중대표소송의 도입 과정과 입법례 ···················································· 132
   3. 회사법상 다중대표소송 ············································································ 139
   제4장 다중대표소송제도의 도입 관련 논점과 입법(안) ·································· 144
   제1절 다중대표소송제도의 도입 필요성과 각종 입법(안) ·························· 144
   I. 다중대표소송의 도입 필요성 ································································· 144
   1. 모·자회사 운영방법의 입법보완 ························································· 144
   2. 기업집단의 사익추구행위의 구제방법 ·············································· 154
   II. 다중대표소송제도 도입 입법(안) ··························································· 161
   1. 법무부 입법개정(안)과 그 특징 ························································· 162
   2. 국회 입법개정(안) 내용과 특징 ························································· 165
   제2절 다중대표소송제도의 도입 시 쟁점사항 ·············································· 174
   I. 모회사의 자회사에 대한 지분요건 ························································· 174
   1. 자회사 지분비율에 관한 검토 ···························································· 174
   2. 지분요건에 대한 검토 ·········································································· 178
   II. 대상 자회사 포함 범위 요건 ·································································· 179
   1. 자회사 범위와 인정단계 ······································································ 179
   2. 자회사 범위의 검토 ·············································································· 182
   III. 주주의 제소자격에 관한 요건 ······························································· 184
   1. 각종 개정(안)과 학계의 동향 ····························································· 184
   2. 제소요건의 비율에 따른 상장회사 최소지분시가 분석 ················· 187
   IV. 기타의 쟁점사항 ······················································································ 190
   1. 사전 제소청구 절차 쟁점 ···································································· 190
   2. 주식소유시점과 소송비용의 쟁점 ······················································ 192
   3. 주식교환·이전에 의한 원고적격 계속인정 쟁점 ······························ 194
   제3절 다중대표소송의 실효성 확보 및 남소방지책 ···································· 197
   I. 다중 회계장부 열람청구권 제도의 도입 ··············································· 197
   1. 상법상 회계장부 열람청구권 ······························································ 197
   2. 다중 회계장부 열람청구권 ·································································· 198
   II. 남소방지를 위한 제도 정비 ·································································· 201
   1. 다중대표소송에서의 경영판단의 원칙 ·············································· 201
   2. 특별소송위원회 제도 ············································································ 208
   제4절 다중대표소송제도 도입을 위한 제언 ·················································· 212
   제5장 결 론 ············································································································ 218
   참고문헌 ··················································································································· 221
   Abstract ·················································································································· 239