2016년도 상사법학계 및 상사판례의 동향

Abstract

Upon a kick-off of a new term of the 20th Korean National Assembly(the“KNA”) in 2016, amendments to the Korean Commercial Code(the“KCC”) in the flow of economic democracy have been proposed before the KNA. It has caused hot issues in our Korean Commercial Code-Studying Academies. According to Korean business communities, if the proposed amendments to the KCC pass, the Republic of Korea will be said to be under the worst situation to do business in the world. They also concern that if management autonomy of Korean companies, which have been exhausted due to long-term depression and global competition, are controlled, they may fall under so-called, “table death”. After much argument, there is currently little controversy over the proposed amendments to the KCC but it may become controversial again at any time if a new government begins to rule in May, 2017. To look into main details of the proposed amendments to the KCC, I can summarize them as follows: (i) an obligation of an electronic voting system; (ii) an introduction of a multiple derivative suit system; (iii) separate appointment of auditors and limitation of voting rights of majority shareholders up to 3% upon appointment of auditors; (iv) obligation of a cumulative voting system; and (v) an obligation of appointment of a minority shareholder and of a person recommended by an employee representative as external directors. As to pass of the proposed amendments to the KCC, we should not ignore an ultimate purpose of improvement of corporate governance structure. It is mainly intended to maximize corporate value and to maintain and develop companies through effective decision making and enforcement. Thus, I assume that it is desirable to legislate in a way mitigating burdens of companies rather than increasing those. In consideration of current domestic and overseas economic situations, we should enable companies to participate vigorously in enhancement of economy through bolder investments by stressing entrepreneurial spirit. It is clear that improvement of corporate governance structure and securement of management transparency should be a fundamental direction for us to aim for. But we should keep in mind of a proverb saying ‘Do not burn down the barn to kill the rats!’ Considering any and all companies and entrepreneurs as potential criminals may cause bigger problems.