2020년 개정 상법 시행령에 대한 비판적 검토

Abstract

On January 29, 2020, the partially amended Enforcement Decree of the Commercial Act was promulgated (Presidential Decree No. 30263). As the reason for the amendment of the Enforcement Decree, the government declares that it aims to provide institutional support to ensure that the general shareholders’ meeting is effectively operated as the company’s supreme decision- making body, guarantee the independence of the board of directors, and expect to establish the transparency and soundness of corporate management by promoting the shareholders’ exercise of substantial shareholder rights and. However, if the 2020 enforcement ordinance is closely analyzed, there are various problems. Accordingly, this paper reviewed the Enforcement Decree with a focus on presenting problems in terms of the legal system and contents. As a result, the following problems were found. Some matters that should be entered into the Commercial Act are prescribed in the 2020 Enforcement Decree, so the legal systemic consistency is insufficient. In terms of content, positive and negative aspects exist in the following points. First, although it is possible to increase the convenience of electronic voting by simply facilitating the identification process of shareholders, it is doubtful whether electronic voting will be activated in reality. In addition, activating electronic voting has the effect of reducing the existing value of the general shareholders’ meeting which is inherent in the Commercial Act. Second, in the case of appointing directors and auditors, forcing the disclosure of detailed information about the candidates contributes to shareholders exercising their voting rights more rationally, while disclosing negative information about the candidates has the side effect of reducing the number of candidates. Third, providing a business report and an audit report at the general shareholders’ meeting notice will contribute to the shareholders' voting rights. However, in terms of the legal system, there is a lack of consistency among the Capital Market Act, the External Audit Act, and the Commercial Act and its Enforcement Decree. Fourth, strengthening the requirements for disqualification of outside directors is essential to ensuring the independence of the board of directors. However, it is doubtful whether strengthening independence can overcome the criticism that outside directors act merely as a rubber stamp.