주주대표소송의 중재가능성

• 영문명: The Arbitrability of Derivative Claims in Korea
• 발행기관: 한국중재학회
• 저자명: 신연수(Yunsoo Shin)
• 간행물 정보: 『중재연구』제35권 제2호, 3~21쪽, 전체 19쪽
• 주제분류: 사회과학 > 무역학
• 파일형태: PDF
• 발행일자: 2025.06.01

국문 초록

The arbitrability of derivative claims can be controversial because the statutory regime governing companies is generally considered collective and serves public interests, while arbitration is a tool for settling private disputes respecting private party autonomy. This paper argues that derivative claims should generally be arbitrable in Korea to provide a better way to resolve disputes according to the parties’ intention and for the benefit of the companies. Korean statutes do not deny the arbitrability of derivative claims, and there are no public policy grounds to prohibit derivative claims in arbitration. First, as disputes over property, derivative claims fall within the definition and scope of arbitration under Article 3(1) of the Korean Arbitration Act. Second, provisions on derivative claims in the Korean Commercial Act or other applicable corporate laws that merely assume court jurisdiction should not be interpreted as a general prohibition invalidating the parties’ clear decision to resolve the dispute in arbitration. Third, respecting the statutory requirements for a shareholder’s standing to bring a derivative claim in the jurisdiction of incorporation, the legislature’s intention to balance the interests of relevant stakeholders will be well maintained in arbitration. Lastly, as seen in other jurisdictions that accept the arbitrability of statutory corporate claims, derivative claims between shareholders and directors should be allowed in arbitration because they are essentially contractual disputes that do not necessarily engage the rights of creditors or impinge on any statutory safeguards. Moreover, for example, allowing the derivative claim under the Korean Commercial Act in arbitration, which permits claims against a relatively broad range of defendants, can resolve disputes between controlling shareholders (de facto directors) and minorities or between the joint venture partners can be resolved in a mutually beneficial way by protecting the company’s interests, ensuring damages are compensated and supporting the company’s ongoing business.

목차

Ⅰ. 문제의 소재

Ⅱ. 주주대표소송의 중재가능성에 대한 법적 근거 검토

Ⅲ. 중재합의의 범위

Ⅳ. 주주대표소송의 중재가능성 관련 외국 판결 검토

Ⅴ. 중재가능성 인정 시 실무상 유의점

참고문헌

키워드

중재가능성 주주대표소송 중재합의 국제상사중재 회사법 arbitrability derivative claim arbitration agreement international commercial arbitration corporate law