개정 상법상의 감사위원 분리선임 제도 도입의 의미와 과제

Abstract

An amendment to the Commercial Act, including the separate election of audit committee members, was resolved at the National Assembly in December 2020. The amendment to the Commercial Act is mainly about the separate election of audit committee members and the introduction of a multiple representative litigation system. The separate appointment of audit committee members and the multiple representative lawsuit were included in the amendment to the Commercial Act to improve corporate governance as one of the President Park administration's economic democratization policies in 2013. At the time, the proposed amendment to the Commercial Act, which had been announced as the legislation at the time, had five themes, including the separate election of audit members, the mandatory cumulative voting system, the mandatory electronic voting, the intro- duction of multiple representative lawsuits, and the mandatory executive officer system, but could not be linked to the legislation. The separate election system for audit committee members was debated for and against the introduction of the system from the standpoint of legal and corporate reality, but the legislation was made in a state where a complete agreement was not reached. Conscious of the opposition from the business community, the contents of this revised law were considerably relaxed compared to the draft. The important content of the revised law is that the company must elect one of the audit committee members separately from the appointment of other directors, and that the 3% restriction on voting rights of the commercial law is applied to the audit members who are separately elected. Compared to the draft revised law, all audit committee members were elected separately, and in the case of the largest shareholder, the voting rights would be limited to 3% by summing the stocks held by specially related persons. Essentially, in the case of appointing directors, it is an infringement of shareholder rights to limit the voting rights of shareholders, and the claim that it is against the principle of shareholder equality is legally justified. However, Korean companies have so-called ownership risk issues in common. In other words, it is the largest shareholder and has a hierarchical governance structure centered on the CEO. In addition, it is taken for granted to take over the management rights of the company with respect to the family, and for this purpose, unreasonable attempts close to various illegal acts are being made. In management by the largest shareholder, the problem of private benefits in which the controlling shareholder can sacrifice the interests of other shareholders or affiliates for his or her own interests or for the interests of the company he owns is more emphasized than the agent problem under US corporate law. In this regard, the separate election of the audit committee members, which limits the shareholder rights of the largest shareholder, is reasonably and justifiable, and it can be evaluated as an attempt to bring about small changes to the existing corporate governance structure.