주주의 회계장부열람청구권에 대한 연구 ― 열람청구의 허용 및 범위에 대한 한국과 미국의 법리를 중심으로 ― = The Legal Study on the Right to Inspection of Books and Records for Shareholders - Focusing on the Comparison between Korean and US Legal Discussion -

다국어 초록 (Multilingual Abstract)

Shareholders` demands for access to the internal information of a corporation have increased. It is necessary to review Korea`s the legal principle of the inspection of books and records through the comparative balancing between shareholders' rights and company`s interests. Considering the form of regulations in the Korea Commercial Act, it seems that the company must prove the reason for denying inspection of the books and records by shareholders. However, Korea`s the lower court unfairly limited the shareholders` right as if the burden of proof was on the shareholders. It is impressive that the Korea Supreme Court recently declared that the burden of proof for denying the inspection is on the company. In the United States, the right to inspect of books and records is derived from common law. Based on the right, not only accounting books but also various company documents such as shareholder lists, minutes of the board of directors are also included in the range of the right. On the ground of the right, shareholders can acquire electronic information such as e-mails, text messages and electronic communication contents made by board members. It is noteworthy that a U.S. court can order certain limitations like the period and usage of the books and records which are given by the company to the shareholders. In the legal principle of the ‘fishing expedition’ under the Civil Procedure Act of Korea, the disadvantages of the submitter and the document applicant should be balanced. In Korea, there is little discussion of company confidentiality about the right. Moreover, it is very difficult to shape the contents of corporate confidentiality firmly. For this reason, it is necessary to expand the discretion of the court about the right. In the Korea civil procedure law, trial procedures about the right are under the adversary system. The trial procedures of the right should be revised as non-contentious procedures like the appointment of the inspector and the inspection of minutes of board of directors` meeting. To restrict the right, the legal system should be modified to give the court some discretion to impose sanctions on inappropriate use by shareholders. In response to these modifications, the Korea court should expand the right of inspection of books and records to shareholders.