2020년 상법 개정안의 주요 쟁점 검토 -다중대표소송제와 감사위원 분리선임제의 도입을 중심으로-

Abstract

The government submitted a proposed amendment to the Commercial Act to the National Assembly in 2020. Among the various matters contained in the proposed amendment, the introduction of the multiple derivative suit and the separate election of one audit committee member, which are heating controversy, were examined in depth. First of all, the introduction of the multiple derivative suit has been unsuccessful although the government and the National Assembly have already made efforts to pass it several times in the past. Such efforts have not been reflected in the proposed amendment, although the 20th National Assembly has already made considerable efforts to seek alternatives due to concerns about the abuse of lawsuits. In addition, it is difficult to accept that the multiple derivative suit under the proposed amendment not only favors the shareholders of the parent company over the shareholders of the subsidiary, but also leaves the way for the shareholders of the parent company to file a complaint with the subsidiary without asking for the intention of the parent company. Moreover, the question is how to overcome the contradictions that arise in relation with the legal principles on corporate entity status that have been established since the introduction of the multiple derivative suit. Next, on the basis of the unified 3% voting right limit, the proposed amendment, which requires at least one audit committee member to be separately elected, has a more relaxed aspect of regulation than the previously proposed amendment which was intended to elect all members of the audit committee in separation from the member of the board of directors. However, it cannot be overlooked that the election of a member of the audit committee violates the shareholder's right to elect a board member, because the election of the audit committee member presupposes the that of a director. In particular, since the voting rights of the largest shareholder, his/her related persons and other shareholders are regulated to the maximum of 3 percent each, the problem arises that despite being the same director, the member of the auditor committee cannot represent the entire shareholder in that, unlike other directors, he or she can become a member of the board with only a small number of votes. Even if the separate election of at least one member of the audit committee has already been institutionalized in the Act on Corporate Governance of Financial Companies, it should not be applied to listed companies that are for-profit corporations.