주주총회와 이사회의 권한 배분 문제에 관한 소고* - 자기주식 취득 및 소각, 회사 분할에 대한 주주제안 사례를 중심으로 -

Abstract

The allocation of authority between the general meeting of shareholders and the board of directors is an important issue in the governance structure of the corporation. This issue is also a fundamental matter of the corporation system, which can affect efficiency and reasonableness of a company’s business and finance decision-making, and overall responsibility therefor. Nevertheless, discussions on the allocation of authority between the general meeting of shareholders and the board of directors in Korea have focused on an abstract and general analysis of the relationship between the Article 393(1) of the Korean Commercial Code (the “KCC”), which regulates the authority of the board of directors, and the Article 361 of the KCC, which regulates the authority of the general meeting of shareholders. However, the afore-mentioned issue, the allocation of authority between the general meeting of shareholders and the board of directors, have received more attention, as (i) recent regulatory improvements have been made, such as amendments to the KCC, in order to strengthen minority shareholder rights and promote transparency in corporate governance, (ii) exercise of shareholder rights have been strengthened by introduction of stewardship code by institutional investors in the capital market, and (iii) activist funds or minority shareholder associations have been active in the engagement with the corporations. In particular, as minority shareholder proposals pursuant to Article 363(2) of the KCC have been actively made on agenda items that have been considered to require a board of directors’ resolution, such as the acquisition and cancellation of treasury shares and the corporate spin-off, in addition to typical agenda such as dividends, appointment of directors, and changes to the articles of association, a question has arisen whether the above agenda items can be interpreted as matters that can be decided solely by the general meeting of shareholders, excluding the board of directors, in terms of the perspective of allocating authority between the general meeting of shareholders and the board of directors. Relying solely on Article 393(1) and Article 361 of the KCC, a simple statement that the general meeting of shareholders is the highest decision-making body of the corporation or principle of separation between ownership and management is not sufficient to answer the question of whether the board of directors or the general meeting of shareholders can make decisions for specific agendas. In addition to the KCC, the Financial Investment Services and Capital Markets Act (the “FSCMA”) also prescribes various disclosures regarding a company’s decision-making, or even requires the submission, acceptance, and effectuation of a securities registration report for some of important transactions. It is necessary to take into account relevant procedures, such as securities listing procedures, in accordance with KRX regulations as well. Furthermore, it is also necessary to consider (i) whether the transaction related to relevant agenda treats all shareholders equally, so that there is no room for damage to shareholders or the corporation, and no room for liability issues for the decision, or (ii) whether liability for loss to the corporation may be recognized for the relevant decision-making entity so that there is a need to guarantee the reasonableness of the decision-making. Ultimately, the allocation of authority between the general meeting of shareholders and the board of directors in terms of the decision-making of the corporation requires not only an abstract and uniform approach reviewing Articles 393(1) and 361 of the KCC, but also a detailed concrete analysis of relevant transaction procedures and regulations in individual and specific agendas, such as the acquisition and cancellation of treasury shares and corporate spin-off. In addition, legislative and interpretative analysis on overall fundamental issues such as the KCC and the FSCMA should be comprehensively considered, including duties and responsibilities of directors, distinction between interests and accounts of a company and shareholders, whether a shareholder’s duties and responsibilities to the company are to be acknowledged, regulations on maintenance of capital market order such as regulation on public disclosures requirement and prevention of the use of material non-public information under the FSCMA.