이사 선임에 관한 의안 검토 - 2016년 국회제출 상법개정안을 중심으로 -

Abstract

This study reviews the appropriateness of the Separate Election used for selecting Members of the Audit Committee, as stipulated in the latest amendment of the Korean Commercial Code. The amended version has been submitted by several parliament members in the year 2016. The strengthening of the disqualification criteria applied to the election of outside directors and the separate election of the audit committee members apart from the election of other, regular members of board of directors as stipulated in the amendment have as their purpose the protection of minority shareholders. However, in reality minority shareholders cannot elect audit committee members due to the aggregate number of shares held by minority shareholders not reaching a critical figure high enough to elect any single audit committee member at a public corporation. On the contrary, institutional shareholders may hold a sufficient number of shares to elect several audit committee members. As a result, the policy in question will likely uphold institutional shareholders rather than achieving the originally intended goal of protecting minority shareholders. It was also argued that these rules were put in place to champion the principle of "economic democratization". However, the rules actually deprive shareholders of the right to self-determination by limiting the right to appoint directors and subsequently violating the management rights of shareholders. This is neither reasonable nor compatible with the corporate reality in Korea. Moreover, serious side effects are likely to follow. In particular, the 3% voting right limitation rule in the election of audit committee members in itself is unconstitutional. One of the most serious problems is that the cumulative vote suggested by a minority shareholder can be abused to appoint a particular individual to the Audit Committee, also an inside director. In particular, in the case of holding companies, this policy will undermine the credibility of the government, as the Korean government has been consistently pushing corporations to convert their original cross-ownership structure into a holding company structure. It would be inevitable that holding companies end up electing their audit committee members entirely by institutional shareholders. Amendments to the code to hold a separate election for selecting members of the audit committee should be revoked. The latest amendment to commercial code is a fantasy at best, as it stipulates the required credentials for becoming an outside director and calls for a separate appointment of an auditing members of the board of directors. The new commercial code assumes that the owners of the corporation are minority shareholders and it is economic democracy to protect such minority shareholders, all the while not guaranteeing the right to corporate management. As we have seen in the above, this is neither reasonable, nor does it fit the realities of the Korean corporate environment, and thus raises serious concerns about side effects. In particular, The rule that limits the 3% voting rights is unconstitutional. But it goes even further by constraining the appointment of the corporate director, which leads to practically violating corporate management rights. This has a high likelihood of being abused in feuds over corporate management rights. Rather than having the effect of protecting minority shareholders, it might end up giving more opportunities to funds. One of the most serious issues, however, is that a concentrated vote raised by the suggestion of a minority shareholder can be used to appoint a particular auditing members of the board of directors. In particular, in the case of holding companies, this would run against the direction that the Korean government has been headed, leading to a serious blow to the confidence placed in the government.