이사회의 개선방안에 대한 고찰— 최근 미국에서의 논의를 중심으로 —
The Study of the Improvement Plan for Board of Directors
0
조회
0
다운로드
1
인용
0
참고문헌
키워드
초록
As corporations grew through the 1970s and shareholding was divided among more widely dispersed shareholders in the U.S., CEOs, rather than shareholders, began to choose the board members. The CEO is able to run the daily operations of the firm and could recommend nominees to the board, after an increasing number of firms have failed to have a controlling shareholder. It is the managers who heavily influence the nominating process and cause the selection of board members in their own, and control over the nominating process machinery. The result of that change is that the board is effectively inferior to the CEO it is supposed to supervise. Modern corporate law of the U.S. has settled on a notion of a monitoring board. That means that the board has the ability to monitor management and maximize shareholder wealth. The monitoring function is described as the function which is at the heart of the agency cost model of the firm, because it identifies the central role for the board, necessary in light of managers' temptation to shirk or to act opportunistically. A monitoring board is composed mostly of independent directors, who don't have close personal or financial relations to the firm. But the independent directors are neither necessarily socially independent from management nor unsympathetic to the concerns of senior officers. The board's role become advisory at best rather than supervisory. One of the criticisms of the mandatory independent board of the U.S. is that it applies to all companies, regardless of the idiosyncratic needs or preference of a particular business type. There exists a need for improved corporate governance in the U.S. It is proposed an opinion that companies would be required to comply with the rules, or explain in their SEC filings why they have chosen not to do so. The dual board structure which would be composed of business review board and conflicts board is also proposed as an alternative of monitoring board by some scholars. The other opinion proposes an investor board, which would be a board of directors made up of representatives of various corporate constituents, including shareholders, creditors and senior managers. It is necessary to consider the improvement of independent board in Korea.
Abstract
As corporations grew through the 1970s and shareholding was divided among more widely dispersed shareholders in the U.S., CEOs, rather than shareholders, began to choose the board members. The CEO is able to run the daily operations of the firm and could recommend nominees to the board, after an increasing number of firms have failed to have a controlling shareholder. It is the managers who heavily influence the nominating process and cause the selection of board members in their own, and control over the nominating process machinery. The result of that change is that the board is effectively inferior to the CEO it is supposed to supervise. Modern corporate law of the U.S. has settled on a notion of a monitoring board. That means that the board has the ability to monitor management and maximize shareholder wealth. The monitoring function is described as the function which is at the heart of the agency cost model of the firm, because it identifies the central role for the board, necessary in light of managers' temptation to shirk or to act opportunistically. A monitoring board is composed mostly of independent directors, who don't have close personal or financial relations to the firm. But the independent directors are neither necessarily socially independent from management nor unsympathetic to the concerns of senior officers. The board's role become advisory at best rather than supervisory. One of the criticisms of the mandatory independent board of the U.S. is that it applies to all companies, regardless of the idiosyncratic needs or preference of a particular business type. There exists a need for improved corporate governance in the U.S. It is proposed an opinion that companies would be required to comply with the rules, or explain in their SEC filings why they have chosen not to do so. The dual board structure which would be composed of business review board and conflicts board is also proposed as an alternative of monitoring board by some scholars. The other opinion proposes an investor board, which would be a board of directors made up of representatives of various corporate constituents, including shareholders, creditors and senior managers. It is necessary to consider the improvement of independent board in Korea.
참고문헌 (24)
- 이준구, "미시경제학" (2008), 法文社
- 안택식, "사외이사제도에 관한 최근 논의와 그 개선방안", 경영법률, 20(3), pp.67~103 (2010), 한국경영법률학회
- 원동욱, "주식회사 이사회의 기능변화에 따른 집행임원제도의 도입에 관한 연구", 박사, 법학, pp.2006
- 정찬형, "株式會社의 支配構造와 權限의 分配", 상사판례연구, (16), pp.3~51 (2004), 한국상사판례학회
- 정찬형, "현대상사법논집(강희갑박사 화갑기념논문집)" (2001)
- 최준선, "기업지배구조의 실태분석", 기업법연구, 19(2), pp.35~54 (2005), 한국기업법학회
- Conference Bd., "Board Diversity in U.S. Corporations: Best Practices for Broadening the Profile of Corporate Boards 20, 22", ~ (1999)
- Diana Bilimoria, "Board Committee Member- ship: Effects of Sex-Based Bias", Acad. Mgmt. J, 37, pp.1453~1454 (1994)
- Edward B. Rock, "Symposium: Norms and Corporate Law: Introduction", U. Pa. L. Rev, 149, pp.1607~ (2001)
- Elizabeth Cosenza, "The Holy Grail of Corporate Governance Reform: Independence or Democracy?", BYU L. Rev, 2007, pp.1~18 (2007)
- Eric M. Fogel, "Strangers in the House: Rethinking Sarbanes-Oxley and the Independent Board of Directors", Del. J. Corp. L, 32, pp.3~ (2007)
- Florence Shu-Acquaye, "The Independent Board of Directors and Governance in the United States: Where is this Heading?", Whittier L. Rev, 27, pp.725~ (2006)
- Jill E. Fisch, "Taking Boards Seriously", Cardozo L. Rev, 19, pp.265~ (1997)
- Jonathan P. Charkham, "Keeping Good Company: A Study of Corporate Governance in Five Countries", 361~ (1994)
- Kathleen M. Eisenhardt, "Politics of Strategic Decision Making in High-Velocity Environments: Toward A Midrange Theory", Acad. Mgmt. J, 31, pp.737~ (1988)
- Kelli A. Alces, "Beyond the Board of Directors", Wake Forest L. Rev, 46, pp.783~ (2011)
- Lynne L. Dallas, "The Multiple Roles of Corporate Boards of Directors", San Diego L. Rev, 40, pp.781~ (2003)
- Lynne L. Dallas, "The New Managerialism and Diversity on Corporate Boards of Directors", Tul. L. Rev, 76, pp.1363~ (2002)
- Lynne L. Dallas, "Proposals for Reform of Corporate Boards of Directors: The Dual Board and Board Ombudsperson", Wash. & Lee L. Rev, 54, pp.130~136 (1997)
- Robert W. Hamilton, "Corporate Governance in America 1950-2000: Major Changes But Uncertain Benefits", Iowa J. Corp. L, 25, pp.354~ (2000)
- Ronald J. Gilson, "Reinventing the Outside Director: An Agenda for Institutional Investors", Stan. L. Rev, 43, pp.863~ (1991)
- Shaker A. Zahra, "Boards of Directors and Corporate Financial Performance: A Review and Integrative Model", J. Mgmt, 15, pp.291~301 (1989)
- Tamar Frankel, "Corporate Boards of Directors: Advisors or Supervisors?", U. Cin. L. Rev, 77, pp.501~504 (2008)
- Thomas P. Byrne, "False Profits: Reviving the Corporation's Public Purpose", UCLA L. Rev. Discourse, 57, pp.25~ (2010)