이사회와 대표이사의 권한 분장

Abstract

Under our corporation law corporate decision-making power is allocated to 3 organs : the shareholders’ meeting, the board of directors and the president(managing director). Like other jurisdictions the shareholders’ meeting has competence over those so-called fundamental corporate actions such as mergers, divisions, reduction of legal capital, amendment of the articles of incorporation, etc. All the residual business management affairs are decided or at least directed by the board of directors. The the president(managing director) then internally executes those things decided both by shareholders and the board of directors on the one hand and externally represents the corporation on the other hand. The board of directors has no power to represent the corporation. Except for so-called small corporations the asset of which falls under one billion won, the board of directors is to be composed of at least 3 members. Therefore the board of directors is not suitable for prompt and flexible decision-making. It would be neither imaginable nor possible in business societies that the board of directors decides all business management affairs assigned to it. In regard to the interpretation of § 393 ① Korean Commercial Code, it is generally accepted by theories and court decisions that the board of directors does handle only material business management affairs and delegate non-material affairs to the president(managing director). In other words, so far as material business management affairs are concerned, the board of directors may not delegate to the president(managing director) but has to decide for herself. This is the core of the power allocation order provided in § 393 ① Korean Commercial Code. The problem is how to discriminate between material and non-material business management affairs. The day to day(usual)/non-day to day(unusual) test, supported by a few professors, is incomplete and defective in that even day to day business management affairs may be significant enough to need prudent board’s resolutions. Instead most professors and court decisions prefer the comprehensive test in which all relevant qualitative and quantitative factors are to be taken into consideration. According to the comprehensive test the judgement varies case by case with the size, sum, nature, etc. of both the business management affair and the corporation concerned. The comprehensive test should be supported. Finally it is noted that, in recent corporate governance context, the board’s control function is more important than that of decision-making, and it is therefore argued that even under the comprehensive test the range of material business management affairs shouldn’t be that far recognized as to adversely affect the board’s control function.