지배주주인 이사의 보수 통제

Abstract

In this article, the author reviewed how a controlling shareholder can be controlled when he or she receives the excessive remuneration. Article 388 of the Commercial Act requires the remuneration of directors to be decided by the articles of incorporation or the resolution of shareholders’ meeting. However, the current practice only sets an upper limit on the total amount of directors’ remuneration by the articles of incorporation or the resolution of shareholders’ meeting. In fact, individual directors’ remunerations are determined by the board of directors, and the board may delegate the decision to the representative director. Given the above practices, even if the controlling director is regared as a special interested party and its voting right be excluded at the shareholders’ meeting, it is possible to allow excessive remuneration to himself/herself or his or her related persons in the process of allocating the remuneration of individual directors. However, the excessive remuneration of directors can be a misconduct in the form of business embezzlement, and there are many problems such as harming the company’s capital faithfulness, contrary to the principle of equality of shareholders. There may be procedural and substantive controls in the method of control. If the remuneration is excessive, procedural control is necessary because it is not easy to set the standard for excessive. At the same time, however, substantive control is necessary because procedural control is not enough in the presence of a controlling shareholder. The current law does not provide for substantive control, but the Supreme Court restricts or denies the effects of excessive remuneration arrangements and, as a logic, indicates that such arrangements are illegal. First, in the case of procedural control, if the director raises the agenda of remuneration for the directors on the shareholders’ meeting, it should be made clear that the voting right of the controlling shareholder shall be excluded. And the shareholders’ meeting shall decide how to distribute the remuneration by the resolution. In addition, it is necessary to enforce the compensation committee. Second, in the case of substantive control, minimal intervention is secured by the Supreme Court case, but the approach is bypassed and difficult to predict. Therefore, it is necessary to establish a principle rule to limit excessive remuneration and to establish sub-rules to determine whether the remuneration of directors is excessive. As an example of the sub-rule, the author proposes to establish a provision with the same purpose as the non-inclusion in deductible expenses clause on excessive remuneration of directors who are controlling shareholders under the Corporate Tax Law.