현행 상법상 주식회사의 감사선임의 문제점

Abstract

This paper deals with several problems in selection of corporate auditors under the Korean Commercial Code. Whenever revision of the Code is matter of public concern, controversial opinions are always sharply on the auditing system. It is due to unclear and complicated clauses of the Code as well as the importance of auditor’s status. Disputes on auditing system must be considered from the view of corporate governance. Under the current structure of corporate governance, functions of several authorities that have auditing power such shareholders meeting, the board of directors, rights of minority shareholders, and creditors etc, are overlapping. Since the revision of the Code in 2011 that amended the structure of the auditing system such as introduction of U.S. style officer system and strengthening auditing function of the board, width and depth of the debates around the auditing system have been wider and deeper. This paper suggests the following: first, “the 3% Rule” in selection of auditor should be reconsidered in the long term because it has no reason due to there being no legislative cases in the world. However, it is not a big problem to maintain “the 3% Rule” because the majority of the shareholders have their own way in the history of corporate governance in Korea. Second, even if “the 3% Rule” has been kept for some time, it is not reasonable to apply the Rule to only the largest shareholder, summing up the shares of affiliates. Third, even if “the 3% Rule” is accepted, it is not reasonable to apply the Rule only to the selection of directors, not to the removal of directors. Finally, the types of audit committee under Sections 415-2 and 542-12 need to be unified.