주주총회 결의에 의한 퇴임이사의 해임 가부 - 대법원 2021. 8. 19. 선고 2020다285406 판결의 평석을 중심으로 -

Abstract

The dismissal right of shareholders represents the most powerful and direct mechanism for monitoring directors, controlling agency costs. However, a recent Supreme Court ruling (Supreme Court decision 2020da285406 rendered on August 19, 2021), hereinafter referred to as the “subject judgment,” has denied the possibility of dismissing a holdover director through a resolution at a general shareholders' meeting. Under the Commercial Act, the inability to dismiss holdover directors is unlikely to cause significant problems, as the appointment of a director can be accomplished through an ordinary resolution at a general meeting of shareholders. This requirement is less strict compared to the resolution needed for dismissal. Also, the appointment of an interim director can be requested to a court to replace holdover directors. Furthermore, allowing the dismissal of holdover directors at general shareholders' meetings could result in directorial vacancies, indicating the need to prohibit such dismissals, similar to the position taken in the subject judgment. However, when dealing with directors who continue to perform their duties until the appointment of a successor under Article 28, Paragraph 1 of the Public Institutions Management Act, it becomes necessary to handle the situation differently, taking into account the different requirements and objectives of the Commercial Act and the Public Institutions Management Act. In other words, a director cannot be dismissed only when a vacancy occurred at the end of a term because they are considered equivalent to holdover directors under the Commercial Act. The significance of the subject judgment lies in it being the first decision to address whether a holdover director can be subject to dismissal through a special resolution at a general meeting of shareholders under the Commercial Act. However, it can be seen as a limitation that the subject judgment solely explains the legal principles regarding holdover directors under the Commercial Act without explicitly addressing the relationship between the Commercial Act and the Public Institutions Management Act. To make effective use of the unique provisions, it is considered a harmonious interpretation under the current laws to apply the legal principle of holdover directors under the Commercial Act only in cases where there is an insufficient number of directors. With the accumulation of relevant precedents in the future, I hope that a clearer relationship between the legal principles of holdover directors under the Commercial Act and those under other laws will be established.