감사위원 분리선임문제의 쟁점사항 검토

Abstract

This study reviews on the adequacy of the Separate Election of Members of the Audit Committee contained in the amendment of the Korean Commercial Code, preannounced by the Ministry of Justice on July 17, 2013. The Ministry of Justice presented an amendment which provides that the general directors, and the directors who will become members of the Audit Committee, will each be elected in the general meeting, ‘separately’. Furthermore, the amendment stipulates that when electing the members of the Audit Committee, each major shareholder may not exercise more than 3% of his or her voting rights. This enables the minor shareholders to elect a certain candidate they support as a director/member of the Audit Committee with ease, by proposing this candidate as the director who will become a member of the Audit Committee via shareholders’ proposal, and, in succession, cumulatively voting for said candidate. In this study, the writer takes an opposite stance to such amendment based on the following argument. Firstly, limiting the major shareholders’ exercisable voting right to 3%, when electing a member of the Audit Committee, may violate the shareholders’ right of property, and therefore possibly violates the Constitution. Secondly, as long as the member of the Audit Committee is also a director, it is unlawful to separate the election of the general directors and the directors who will become members of the Audit Committee. The members of the Committee shall be elected, as they are elected under the present law, after the election of the directors, among the directors thereby appointed. Thirdly, even though the amendment aims to protect and enhance the minor shareholders’ right, the provision in issue by itself may most likely be insufficient to fulfil such purpose. This is because in reality, there are few minor shareholders who possess more than 3% stocks of the big listed corporations. As a result, this provision will inadvertently end up merely aiding the institutional investors or speculative capitals in appointing their representative as a director/member of the Audit Committee. The joining of such candidates on the board of directors will consequently deteriorate the swift decision making of the board and hinder the propulsive force in managing a business.