개정 상법상 이사회와 집행임원간의 권한 분배

Abstract

The Korean Commercial Code(the “KCC”) has introduced the “executive officer system”(the “System”) into the governance structure of a chusikheusa (the “a corporation”) through the amendments thereto effective beginning April 15, 2012. It has been anticipated that the System would resolve the legal problems and uncertainties involving the so called “non-registered officers” that in practice a number of corporations have employed since the financial crisis in late 1990’s when listed corporations began to be obliged to elect certain number of independent directors. While few corporations actually adopted the System yet, recently Korean government suggested a legislative proposal for public discussion to turn the System into a mandatory regime with respect to a corporation having an audit committee within its board of directors(including large listed corporations). This article purports to analyze the way in which the KCC separates power between the board of directors(BOD) and executive officer(s) and to verify whether it successfully serves the legislative aims on the System. Part II of this article goes through the scope of the powers of the BOD of a corporation not having an executive officer and the structure of the separation of power between the BOD and a representative director(including other officers), in order to compare such scheme with that of a corporation having an executive officer(s). Part III of this article first analyzes the framework of the KCC provisions regarding the management power under the System. Secondly it examines scope of the powers of the BOD of a corporation having an executive officer(s) and the structure of the separation of power between the BOD and its chief executive officer. Then the author focuses on the powers of executive officers under the System, consisting of the execution power and decision-making power. She points out that there still exist uncertainties involving the interpretation and application of the KCC provisions, among others, with respect to the exclusivity of the execution power of the executive officers and the permissible scope of the delegation of decision-making power by the BOD. Finally she emphasizes that the KCC needs further refinements not only to lift those uncertainties but also to enlarge the permissible scope of the delegation of decision-making power by the BOD. She suggests concrete guidelines for such refinements and specifically enumerates the kind of powers to be resorted. Based upon the foregoing analysis, Part IV concludes that the separation of power issue needs reconsideration so that the System works as anticipated, and summarizes the specific proposals for further amendments to the KCC regarding this issue.