이사의 보수에 관한 최근 판례상 쟁점 검토

Abstract

Since the relationship between a director and the company is a delegation under Article §686 (1) of the Civil Act, the directorsʼ remuneration is free of charge in principle. In order for a director who bears the duty of fidelity and confidentiality to properly exercise his/her duties under the Commercial Act, with the duty to be selective with respect to the company as a basic duty, a person with qualifications must first be appointed as a director, and then this is because the payment of a correspondingly sufficient remuneration must be guaranteed. However, with regard to remuneration for directors, Article §388 of the Commercial Act simply stipulates, ʻʻif the amount is not determined in the articles of incorporation, it shall be determined by a resolution of the general meeting of shareholdersʼʼ, and complex and diverse legal disputes regarding the scope and method of determining remuneration have arisen. Moreover, in the corporate reality in Korea, where the concentration of ownership and management is deepening through vertical or horizontal affiliated relationships, there are cases where the arbitrariness of the controlling shareholder, who exerts a strong influence on the directors, intervenes to determine the remuneration of the directors. Therefore, in order to cause a dispute, it should be interpreted and applied as follows. That is, 1) Article §388 of the Commercial Act is a compulsory provision, so the agreement or payment of remuneration to directors without the provisions of the articles of incorporation or the resolution of the general meeting of shareholders is invalid. 2) Remuneration is economic consideration paid regularly or irregularly as compensation for the performance of duties of directors, regardless of their name. Therefore, the special performance pay that the company pays to motivate the achievement of performance is a remuneration, but the dismissal compensation is not a remuneration because it is a compensation for damages rather than a reward for performing the job. 3) Director's remuneration cannot be comprehensively delegated to the board of directors even with the articles of incorporation or a resolution of the general shareholders' meeting, but individual remuneration can be delegated to the board of directors after the limit of remuneration has been set in the articles of incorporation. 4) The interim settlement of severance pay should be regarded as remuneration while in service, unlike severance pay. Therefore, if a company intends to pay interim settlement of severance pay to directors, the timing and amount of such payment shall be determined by the articles of incorporation or a resolution at the general meeting of shareholders. 5) The remuneration of a director shall be reasonably determined by combining his/her work ability, job content and fidelity, and contribution to business performance, and shall be paid at an appropriate level.