사회적 기업의 지배구조에 관한 법적 고찰

Abstract

This article examines governance specifically within social enterprises. This is a critical part of social enterprise management. Whether referred to as a board of directors or a management committee, this is the area of management that sets the overall framework within which the organization operates. It is a neglected area to date within social enterprise research where the focus has tended to be on the political or the micro-operational. The governance of organizations has received much attention in recent years. A useful definition for this concept is that governance “is the relationship among various participants in determining the direction and performance of corporations.” This can be adapted to embrace sectors beyond for-profits by replacing “corporations” with “organizations” more generally. Participants within the governance function of corporations typically include shareholders, senior management and the board of directors. They have rights and obligations that are enshrined in law. In contrast, participants in the not-for-profit sector do not have the same legal entitlement to participation in governance. This article is concerned principally with boards as the locus of organizational governance. It is at board level that critical decisions are made. Other parties may influence these decisions through mechanisms such as motions put down at annual general meetings but ultimately the board has a significant degree of autonomy to do as it pleases. The board “bears the ultimate responsibility for the integrity of the corporation [and] general compliance with law” and so requires its members to have a commitment to the well-being of the organization and both the skills and experience to discharge such a role. The importance of governance has been acknowledged by academics and policy-makers alike in recent years. Academic research has been wide- ranging and not confined to any particular sector of the economy, with public, private and voluntary organizations all being analysed. The issues dominating each have varied. The public sector has been subject to debates over the decentralizing of decision-making resulting from policies of outsourcing service provision. This has promoted analyses that have examined the role played by citizens, rather than solely government officials, in formulating services and monitoring their quality. Voluntary sector governance research has sought to investigate a range of aspects including the function and composition of boards of management. The emphasis in this body of work, in common with private sector governance issues, is often on the identification of some notion of good practice in board operations. Lots of research has paid attention to governance but the wider forms of social enterprise have received little attention in Korea. This absence is significant as the governance dynamics within social enterprises constituted as companies have the potential to be quite distinct from those within co-operative, mutual benefit organizations. These company dynamics, and the governance responses that may be necessary to deal with these dynamics, will be identified in the work. This provides a platform for theorizing about social enterprise governance in order to begin to address the gap in the future research in Korea. In order to provide a base on which to build a theory specifically for social enterprise governance, it can be usefully compared to voluntary sector organizations that are governed by boards or management committees, and inevitably to the limited company form found in the corporate sector (limited by shares). Therefore, the article begins by examining both stewardship and democratic models of governance in the EU and other jurisdiction. I examines the rationale for treating social enterprises as a form of organization that is distinct from more traditional for-profits and non-profits. This rationale then forms a foundation for a consideration of governance within social enterprises and how this might also be distinctive. I offers two propositions focussing on social enterprise governance. This article concludes by detailing the research that is necessary to investigate these propositions and that can meet the need for sector specific studies which are necessary for theory-building in Korea.