독일의 회사법제 운용경과와 시사점－최근 한국의 지배구조의 논의와 비교를 중심으로－

Abstract

The discussion about corporate governance is going on. Corporate governance is the relationship among various participants in determining the direction and performance of corporations. In korea, there were severe reform discussions on corporate governance in the year of 2013. The 5 topics were dealed with by the ministry of justice: partial compulsion of executive officer, compulsion of cumulative voting, multiple derivative suit, compulsion of electronic voting system, separated appointment of members of auditing committee. There were powerful resistance from the economic world. After that, the ministry of justice has taken a step backwards. But the discussions are now going on. We should solve he problems on corporate governance wisely. We should adopt also the global trend. We can look at german experience. In the year of 2000 the code of best practice was created by civil committee in germany. The german government has also provided Deutscher Corporate Governance Kodex(2002). After that, the german legislators have enacted the so-called comply or explain rule in § 161 Aktiengesetz(stock-law). Member of board of directors and auditing committee should apply the german corporate governance Kodex. When they did not apply the Kodex, then they should explain the reasons. The investors can decide according to the notice. When infringing contents against german Kodex was decided by a majority shareholders in general meeting of stockholders, the decision can be canceled afterwards. But the members of board of directors and auditing committee do not take responsibility for compensation for damage because of that conduct. In extreme case, the members can be responsible according to the rule of explanation of project. The corporate governance discussion goes to similar ways worldwide. There are also some divergence because of the customs and legal traditions of each country. We should try further to get best corporate governance system that is suitable for our corporate character. Thereby the soft law system can be useful solution. By the time, we can get a considerable reference from german corporate governance Kodex and its force.