상장회사 특례조항의 법체계적‧내용적 문제점과 개선과제

Abstract

Although listed companies account for only 0.28% of the total number of companies in South Korea, they have played a crucial role in the nation’s economic development including increasing GDP and creation of jobs. Considering this important roles of listed companies in the modern economy, the legislation on listed companies should not only provide the basis of rules necessary for their operation, but also provide a legal basis for improving the company’s global competitiveness. However, in South Korea, the articles on listed companies were dualized into the 「Commercial Act」 and the 「Capital Market Development Act」 in the process of implementing and developing legislation for promoting their listing by policy, and were transferred to the 「Securities and Exchange Act」 after the abolition of the 「Capital Market Development Act」. As the special articles on the listed companies in the 「Securities and Exchange Act」 was still stipulated in the 「Commercial Act」 and 「Financial Investment Services and Capital Markets Act」 without legal consistency checks, it causes problems of legal inconsistency between each of provisions. Hereupon, in this paper, the legal problems about listed companies were examined, dividing them into legal systematic problems and content problems. In the current law, there have been conflicts in the application of priority between general provisions of the 「Commercial Act」 and the special laws of the listed companies, and it has caused confusions among the men with convictions. Also, the regulation on governance related to listed companies is the same as the U.S. system since the crisis of IMF, and there is an issue that the system of appointing outside directors and auditing committees does not conform to the reality of Korean companies. In order to solve these problems, this paper insisted on unifying the legal system related to listed companies, and for the concrete legislative method it proposed 3 ways. This paper also suggested raising the asset size standard in accordance with the economic reality by reviewing the mandatory provisions related to corporate governance of the listed companies and to improve the mandatory provisions of the current law concerning the formation of outside directors and audit committees.