주식회사 대표이사의 대표권의 범위에 관한 비교법적 고찰

Abstract

Under the U.S. law, the management of the corporation is the responsibility of the board of directors, and the officers are the agents to carry out the corporate’s day-to-day business under the supervision of the board of directors. The president is an officer, and his authority is therefore analyzed under agency principles. The president does not have the automatic right to bind the corporation. Instead, one of four doctrines must usually be used to find that the president could bind the corporation on particular facts : (1) Express actual authority ; (2) Implied actual authority ; (3) Apparent authority ; and (4) Ratification. Under the Korean Commercial Act, the representative director has the authority to do all the judiciary or non-judiciary actions with regard to the corporation’s business on behalf of the corporation. In the opinions of most Korean scholars’ and the Korean Supreme Court, “all the judiciary or non-judiciary actions with regard to the corporation’s business” means anything falling within the scope of the corporate’s legal capacity(Rechtsfähigkeit in German). However, in order to return the position of the representative director from the head of the directors to the position of one of the directors, and therefore restore the position of the board of the directors as decision maker that makes all the decision through discussion and compromise, we need to follow the way the United States understands the scope of authority of the president of the U.S. corporation. Under the U.S. corporation law, the authority of the president of the corporation is very restricted because the president needs approval of the board of directors to do extraordinary business transactions while it does not need such an approval to do ordinary business transactions.