상법 회사편상 특수관계인 범위의 합리적 재조정을 위한 제언 - 2012년 개정 상법시행령 제34조와 제35조를 중심으로-

Abstract

We can find the term of ‘specially related person’(hereinafter ‘SRP’) in lots of financial regulations in Korea. However, the specific definition and its scope is differently set based on individual Act’s regulatory purpose. Among others, Korean Commercial Code(hereinafter ‘KCC’) utilizes this term in order to restrict the possibility of SRP to sit on Board, to prohibit SRP’s monetary transaction with her corporation, etc. It’s clear that these provisions relating to SRP may contribute to improve corporate governance, however, many scholars have criticized the wide range of SRP and uncertainty of the term of ‘important point relating to corporate management’ and ‘actual influence’ of the provision. Most of all, the scope of relatives in SRP is so wide that a person who is not economically related to principal might be regarded as SRP. Thus, for Section 34 of the KCC enforcement ordinance, I recommend to reduce the scope of relatives from current scheme to 2 degree of relationship regardless of blood or marriage relationship similar to U.S. NYSE Listed Company Manual Rule. If revised, more competent candidates can be included in outside director pool in the future. In addition, for Section 35 of the KCC enforcement ordinance, the scope of relatives should be set differently considering the regulatory purpose. Thus, I suggest to set the relative scope as 3 degree of relationship also regardless of blood or marriage similar to Model Business Corporation Act in U.S. The readjustment of the scope of relatives in SRP will provide corporations with more affirmative and efficient management activities. Most importantly, in determination of the definitional scope of SRP, we need to consider the regulatory purpose of individual Acts, and to avoid the possibility to restrict person’s constitutional rights.