小數株主의 經營監視機能强化를 위한 法制의 總體的 考察 - 中·小規模 株式會社 株主의 經營監視機能에 관한 補完策마련을 構想하며 -

Abstract

Traditionally shareholders have been recognized as the owner of a company, albeit conceptually. Recently this recognition is confronting realistic changes triggered by across-the-board introduction of the law protecting the creditors within the Commercial Code due to development and expanded issuance of class shares and class debentures. Accordingly, while the phenomenon of traditional conception on the status of the shareholders' general meeting as the substantial supreme authority being threatened, the function of internal auditor to monitor and supervise the management has weakened or auditor's position itself is removed, so that legislation is adopted that rather anticipates such role to be taken by the general shareholders' meeting. As such, it is true that strange phenomenon is occurring that threatens the basic concept or theories of the joint stock company. These changes may be regarded as the phenomenon that did not occur in an instant recently, but as the gradual after-effect of systemic improvement due to the need of the age. From another aspect, this phenomenon can be understood as the by-product of the abandonment of or a breakthrough from the malfunction of managerial institution as monitoring and supervisory institution within the existing Korean legal system on the joint stock company. Looking back, minority shareholders excluding the controlling shareholder at the general shareholders' meeting are at the summit position of the auditor system, and so the legislative improvement so far has been on the trend to legalize the minority shareholders' right and further strengthen such right subsequently, in anticipation of minority shareholders' role. In case of large corporations, the shareholding of controlling shareholders show the trend to dictate the managerial rights despite of their relatively low shareholding ratio vis-à-vis the total number of shares outstanding despite of the big influence of the institutional investors, and much can be expected from the legislation of strengthening minority shareholders' rights. Meanwhile in case of SMEs with prevalent control by the major shareholder as the owner, any anticipated role by minority shareholder was not logical in reality from the start. Rather it would have been desirable in reality to anticipate the role of the creditor theoretically. However, in consideration of the proceeding of the recent improvement in legislation, it is found out that the improvement in legislation for small to medium sized corporations are realized in a way that is so far apart from the reality. In other words, based on the revision of the Commercial Code on May 28, 2009, the managerial supervisory system in small to medium corporations became de facto non-existent. With respect to this situation, if the legislator in question adopted such revisions because nothing could be expected for managerial supervisory system of small to medium sized corporations in reality from existing legal system and the only expectation could be upon the minor shareholders, a certain supplementary measure should have been prepared so that the expected effect of the supervisory right could be realized. But now the legislation is regarded as a failure as the previous auditor system has been removed without any complementary measure. Accordingly, the author disagreed to the revised Commercial Code on May 28 2009 and April 14 2011, pointing out the problem in the revisions and recommending improvements. But so far no effort can be found to improve such problematic legal system. Therefore this study commences from the comprehensive overview of the legal system on managerial supervision by minor shareholders positioned at the summit of the corporates' auditor system. Then on large scale corporations, this study reviews what is the problem in positive law through the Japanese judicial precedents on the shareholders' right to make proposal adopted for enhancing minority shareholders' rights, in order to consider how the shareholders' right to make proposal as part of effective auditor system in Korean large corporations could settle down as a law or as an interpretation thereof. Subsequently for small sized joint stock companies, this study feels out the possibility of supplementing the supervisory function by methods such as delegating supervisory function to creditor (individual creditor or creditors' committee) in addition to the suggested points and proposals at the author's previous research theses, and simultaneously pursues the method that would enhance the effectiveness of the supervisory function of minor shareholders or creditors by introduction of other systems.