주식회사 사외이사의 역할제고를 위한 법적 고찰

Abstract

To survive endless competition to secure the market, the company tends to maximize its scale and to separate its ownership from management. And in securities market, it is an important issue to secure the investors. It is important to guarantee the transparency and fairness of a company in order to acquire investor’s trust in the company. Recently, to guarantee investor’s trust in the company, the company tends to reinforce the function of supervision of the board, and therefore, the outside director system has been introduced in Korean commercial law system, though it is not fixed yet. Accordingly, the purpose of this treatise is to catch hold of the problem of ongoing outside director and the cause of its problem through the review of the reality of ongoing outside director and related law system, and furthermore, to grope for the way of securing the effectiveness of outside director. The details are as follow. First, we know from the analysis of the corporal governance and outside director in the previous study that outside director has executed the function of supervision of the management. Second, we know that UK and the United States of America have one-tier corporal governance system, and have a tendency to establish the committee of the board, and reinforce the function of the supervision of the outside director. It is possible for a company to adopt one-tier board system and two-tiers system freely in France, but the French company adopts one-tier board system in reality. We know that they reinforce the supervision function of the board in france by way of their recommending to establish the board and emphasizing the role of outside director. Germany maintains two-tiers corporate system, because it is a majority opinion that is not proved drawback of the two-tiers corporate system. We know that they reinforce the supervision function of management by the audit committee, only if there is consent of audit committee when they will make a certain type of contract. Japan has established the nomination committee, audit committee, compensation committee, and we know that they reinforce the supervision function of the board on execution officer by way of separating execution institutions from supervision institutions Third, according to actual analysis of outside director, we know that the education of the own company business and providing information to outside director are not sufficient. The attendance ratio of outside director in board meeting is very low, and the specialty of outside director is also low, because of the influence of the majority shareholder and manager in recommendation of the candidate outside director. According to analysis about the problem of ongoing law, the article about the requirement for qualification of independence of outside director is insufficient, and the article about the scope of establishing the nomination committee of candidate for outside director, cumulative voting, right of access to information is very vague. Forth, we must reinforce the independence of the outside director, as mentioned, to promote the effectiveness of outside director. To do this, it is necessary that the board has no connections with that related director. And, listed companies must establish the nomination committee for outside director, to guarantee the objectiveness and fairness from the stage of recommendation. It must be compulsory to place the cumulative voting to represent the will of minority shareholder. And, we must ensure the situation for outside director to fulfill his duty. To do this, it is needed to educate outside director properly, and publish outside director’s activity. Especially, we need to make the inner regulations which enable the nominee to be educated or informed about the general activity of the company. We should reinforce the supervision function of the board by separating the function of management from the function of supervision of the board. In addition to the officer system in draft on commercial law, the separation of chairman of the board from CEO is needed. And the establishment of internal control system must be compulsory to substance the oversight function, clear the responsibility with result to the failure of fulfilling the duty of supervision, mitigate the responsibility. For outside director to represent the profit of the shareholders, it is recommended for outside director to hold own company’s share, and we think about the way of giving his own company’s share for fee or wage to outside director. In this treatise, I examined the problem of current legal system and operational situation about outside director, and proposed the way to promote the role of it. I wish this treatise would contribute to the legislation about outside director and the management of the company.