상장회사에 있어 지배구조 관련 제도의 입법적 과제

Abstract

The draft of “Capital Market and Financial Investment Business Act” has been completed and are now under final process for the legislation on current congressional session. Since the new law includes several provisions regarding corporate governance and finance, which are not relevant to normal securities law, the Ministry of Finance and Economy eliminated those provisions from “Capital Market and Financial Investment Business Act” and made a draft of “Enlisted Companies Law” which includes those provisions in March 2007. Also the Ministry of Justice in charge of the legislation and revision of Korean Commercial Code made a special committee to prepare a draft of “Special Law to Korean Commercial Code.” It mainly deals with corporate governance and finance matters of enlisted companies and the final version seems to be issued pretty soon. The draft of the Ministry of Justice deals with the same subject as that of the Ministry of Finance and Economy. This article analyzes some legal issues in preparing the above mentioned provisions. First it reviews the problems regarding the election of auditor, the scope of specially related person of controlling shareholder, the inclusion of auditor candidate's name and necessary information on shareholder meeting notice, the necessity of employment contract with auditor elected under general shareholders' meeting, and the decision of auditor's compensation and the dismissal of auditor. Secondly this article deals with the qualifications of full time auditor and auditor. It discusses the limitation of auditor's qualifications, the definition of major shareholders, the necessity of full time auditor, and the process to change from full time auditor to independent auditor. Thirdly it reviews the election of independent directors. It specially focuses on the qualification of independent director, the recommendation of independent director. Fourthly this article reviews the election and dismissal of auditor committee members, the limitation of controlling shareholder voting on the election and dismissal of auditor committee member, applicable provisions to companies which establish audit committee voluntarily without any obligation. Finally this article deals with cumulative voting and insiders trading.