주주의 회계장부열람청구권에 관한 쟁점사항 검토

Abstract

In a stock company, the interests of various entities such as shareholders and creditors etc. are complexly linked, various disclosures of the company are very important to them. Because shareholders check the profitability and recovery of investments and whether or not to change directors based on the disclosures made by the company, and creditors also view the disclosures to determine the possibility of reimbursement and decide whether or not to collect bonds. Moreover, in the case of listed companies, disclosure is also required to maintain fairness in stock transactions. As such, the company’s disclosures and their contents are monitored by shareholders, creditors, and the market, and thus serve as a means of inducing the rational performance of directors. However, since it is difficult to fully disclose company information containing corporate secrets, the Commercial Act mandates disclosure only for certain information, and the scope of disclosure is different according to minority shareholders, general shareholders and creditors.<BR> A stock company shall prepare financial statements, its annexed statements, business reports, and audit reports, and keep a certified copy of it at the head office for 5 years from one week before the day of the general shareholders’ meeting for 3 years and disclose it, the listed companies, etc. subject to the Act on External Audit of Stock Companies etc. must also keep and disclose the audit report of an external auditor. Therefore, if a director neglects this duties, the shareholders who suffered damages can hold the directors liable for damages, and the listed companies are liable for damages due to insolvency disclosure. However, since these documents are prepared by the company for disclosure, there is a risk of fraud, so shareholders who are investors and managers need to obtain more detailed corporate information. However, since it is difficult to fully disclose the financial information of a company that contains corporate secrets, the Commercial Act requires only certain information to be disclosed. However, in order to protect shareholders’ interests, Shareholder’s Right to Inspect Books of Account is recognized. However, only the basic content is defined in a single article, and various issues related to it are resolved by theories and precedents.<BR> The issues related to Shareholder’s Right to Inspect Books of Account are very diverse. Of course, a large part of the solution has been resolved through previous studies and precedents, but new issues are still being raised, and a rational interpretation and legislative supplementation through comprehensive review are necessary. Therefore, in this paper, the following measures were suggested. That is, 1) In relation to stocks, the concept of ownership and the concept of holding are used interchangeably, which must be unified as the concept of ownership. 2) The retention requirement of 6 months or longer applied to listed companies is too long and should be shortened to a reasonable period. 3) Considering the recent trend of digitization, not only documents but also electronic documents should be recognized as a method of requesting access. 4) There is no standard for judging whether a request for reading is unfair or not, so it is resolved according to theory and precedent, but the Japanese Company Law provides examples of unfair claims. Therefore, first of all, it should be judged based on this, but legislatively supplemented in the future. 5) It should be legislatively clarified so that the company cannot reject a request for access to accounting books, etc. while the shareholder proceeds with other procedures such as exercising the stock purchase right or filing a representative lawsuit. 6) Even if the company initiates the rehabilitation procedure, it should be interpreted that the shareholders can request for inspection, and legislative supplements should also be provided.