감사위원 분리 선임(안)의 논의와 쟁점

Abstract

It is the basic concept of separate election of auditor committee directors to elect independent directors by limiting influence of controlling shareholders when electing auditor committee members of board of directors who play the role of a managerial supervisor. In other words, it aims to prevent dogmatic decision of owners including controlling shareholders by further strengthening independence of outside directors who are auditor committee members. Auditor committee members are responsible for monitoring and supervising execution of directors, so they should be guaranteed independence from controlling shareholders. For this purpose, our commercial law has limited the voting right of major shareholders to 3% at the time of their appointment since its enactment, and the same applies to appointment of auditor committee members. However, for the current commercial law, the problem has been pointed out that because only ones who were previously appointed as directors are entitled to become auditor committee members and there is no restriction of the voting right of controlling shareholders at the time of appointment of directors, independence of auditor committee members is undermined. In accordance with the recent amendment, it is obliged to limit the voting right of controlling shareholders to 3%, by electing directors who are to become auditor committee members, separately from other directors from the appointment phase. Considering that influence of minority shareholders is likely to become somewhat stronger by a separate election method, the separate election method has an advantage capable of securing independence of an auditor committee from controlling shareholders or CEOs, but the separate election method causes the problem that controlling shareholders are likely to lose management rights easily, when combined with the shareholder proposal system and the cumulative voting system. Since this separate election system selects auditor committee members who have both the position as a director and the position as an auditor, there is occurring a problem of whether said system should be regarded as election of an auditor which is subject to the voting right restriction, or as election of a director on which controlling shareholders have a fundamental influence. Given the domestic situation in which there is no effective means to defend management rights such as the differential voting rights system and the precedent of the KT & G case in 2006, maintaining 3% voting right restriction system at the time of appointment of auditors or auditor committee members, which has no precedent in legislation, electing auditor committee members through the separate election system, and combing said system with the mandatory cumulative voting may cause a serious problem that management rights are exposed to risks defenselessly, though these claims have some degree of justification by emphasizing transparency and accountability in governance. In addition, attempting to force corporate governance by enforcing mandatory introduction of an executive officer system through an amendment sponsored by legislators may be an excessive interference to business management. Even if there is 3% voting right restriction system, modifying a method of electing auditor committee directors who are members of the board of directors may be an excessive discrimination against largest shareholders, and thus, it should be noted that there are no rules of the voting right restriction on controlling shareholders, and only qualification requirements of auditor committee members are strictly limited in other major countries including the United States which have developed the auditor committee system before us. Therefore, as an appropriate approach to the amendment, it should be provided that companies are given a unlimited autonomy relating to the type of corporate governance and can select corporate governance appropriately in accordance with their individual and specific circumstances, but in case of any wrongdoing such as the unfair involvement in management by controlling shareholders, each organization and person in companies must hold their strict responsibility for it hereafter.