공기업 지배구조의 법적 문제 : 공공기관운영법의 법리, 현실, 문제점

Abstract

Governance of the state-owned enterprises requires rules different from those applied to the private listed companies because of the lack of capital markets, management markets, active shareholders, and bankruptcy risks, which are functioning as a mechanism controlling agency problem in the private listed companies. In this regard, it is understandable that the “State-owned Enterprises Operation Act” (the “Act”) provides for several corporate governance devices distinct from those of the private listed companies. Details of the Act on the corporate governance, public disclosures, and management assessments are generally in order under the influence of the OECD guidelines. The Act, however, fails to take into consideration the differences in the legal and organizational forms of the SOEs (e.g., stock corporation, foundations, and associations), which may cause conflicts and confusion in the course of operation. The Act is also insufficient in separating the government’s exercise of power as an owner and as a regulator. The Act tries to make such distinction by requiring review of the ‘SOEs Operation Committee’ under the leadership of the Minister of Strategy Finance in case of the owner power and by granting supervisory authority to the heads of each responsible government bureau in case of the regulator power. However, such distinction is not sufficient enough to prevent the undue influence of political agenda on the management of the SOEs, especially when the SOE takes the form of a foundation rather than a stock corporation. Another problem is that the Act, with respect to the appointment of heads and senior officers of various SOEs, grants too much power to the executive branch with the President at its summit. The current system needs to be improved to control such unilateral power. At least part of the members of the SOEs Operation Committee should be recommended by those who are outside of the executive branch, and a pool of qualified candidates for the non-executive directors of the SOEs should be maintained under the public notice. Keywords