개정상법상 특수관계인제도의 현황과 그 문제점

Abstract

Under the Commercial Act amended 2011, we can find the term of ‘specially related persons’ in lots of regulations of corporate governance and dealings. First, the stock option shall not be granted to any of the following persons: 1) a stockholder who holds 10/100 or more of the total outstanding shares of the company excluding non-voting shares, 2) a person who actually exercises influence over major management matters of the company, such as appointment or dismissal of directors, auditors, 3) the spouse and lineal ascendents or descendents of a person falling under subparagraph 1) or 2)(§340-2(2)). Second, an outside director of a listed company shall not fall under any of the following subparagraphs as well as any subparagraph of Article 382 (3), and if he/she falls under any of the following subparagraphs, he/she shall be removed from his/her office: 1) a minor, incompetent, or quasi-incompetent, 2) a person adjudicated bankrupt and who has not yet reinstated, 3) a person for whom two years have not yet elapsed since his or her imprisonment without prison labor or a heavier punishment was completely executed or exempted, 4) a person for whom two years have not yet elapsed since he was dismissed or removed from office after he/she violated an Act separately determined by Presidential Decree, 5) in cases where a shareholder of the listed company and persons who have a special relationship with the shareholder as prescribed by Presidential Decree(hereinafter referred to as “specially related persons”) own the largest number of shares, based on the total number of issued and outstanding shares other than nonvoting shares, such shareholder (hereinafter referred to as the “largest shareholder”) and his/her specially related persons, 6) a shareholder who owns more than 10/100 of the total number of issued and outstanding shares other than nonvoting shares for his/her own account regardless of in whose name the shares are held, or exerts de facto influence on important matters related to the management of the listed company, including the appointment and dismissal of directors, executive directors or auditors, and his/her spouse, lineal ascendants and lineal descendants (hereinafter referred to as a “major shareholder”), 7) a person determined by Presidential Decree, who has difficulty faithfully performing any of his/her duty as an outside director, or who may have an influence on the management of the listed company(§542-8(2)). Third, no listed company shall grant credit (referring to lease of property with economic value, including money, guarantees for the performance of obligations, purchase of securities intended for supporting funds, or other direct or indirect transactions determined by Presidential Decree accompanying credit risk on the transactions) to or for a person who falls under any of the following subparagraphs: 1) major shareholders and their specially related persons, 2) directors (including persons who fall under any of the subparagraphs of Article 401-2 (1)) and executive directors, 3) auditors(§542-9(1)). Fourth, any person who falls under any of the following subparagraphs shall not be a full-time auditor for a listed company, and shall be removed from his/her position as full-time auditor in any of the following cases: 1) a person who falls under Article 542-8 (2) 1 through 4 and 6, 2) directors, executive directors and employees who are engaged in the regular business of the company concerned, or directors, executive directors and employees who have engaged in the regular business of the company concerned within two years: Provided, that directors who hold office or have had office as members of the audit committee under this section shall be excluded, 3) a person determined by Presidential Decree who may have an influence on the management of the company, except as provided for by subparagraphs 1 and 2(§542-10(2)) under the Commercial Act amended 2011. Finally, in cases where the total amount of voting stocks of a listed company held by the largest shareholder, his/her specially related persons, and other persons determined by Presidential Decree exceeds 3/100 of the total number of shares issued and outstanding, excluding nonvoting stocks, such shareholder may not exercise his/her voting rights on the stocks in excess when appointing or dismissing members of the audit committee who are neither auditors nor outside directors: provided, that a lower ratio o(§542-12(3)). But there are many problems related with provisions of appointment of outside directors, transactions with interested persons including major shareholders, full time auditors, constitution, etc. of audit committee. In this paper, thus, I have investigated the problems of the specially related persons, and suggested settlement methods to solve the problems of provisions about specially related persons under the Commercial Code amended 2011.