현행 노동이사제도의 회사법상 쟁점

Abstract

According to the amended 「Act on the Management of Public Institutions」, which came into effect on August 4, 2022, public corporations and quasi-governmental organizations under a central government department of a certain size must appoint one or more non-standing directors from among workers. The employee board system, which had been implemented in public institutions under local governments such as Seoul City, was expanded to all public institutions. The employee representation is a system in which a employee representative, recommended by a large number of workers, participates in the board of directors of a company or public institution and conducts management activities as a member of the board of directors. It is of great significance in reducing conflict. In Europe, including Germany, which has adopted the employee board system, 19 countries are already operating it. However, the current employee representation has several legal issues in the Company Act, and the contents are as follows. ① First, the legal nature of employee board is problematic. Under the current Act, employee board is interpreted as other non-executive directors under company law. There may be controversy over the interpretation of Article 165-17 Paragraph 2 of the Capital Markets Act, but it should be interpreted as such according to a purposeful interpretation that takes into account the independence of the outside director system. ② Regarding employee representation, some point out the potential for infringement of property rights in that shareholders' right to appoint and dismiss directors is restricted by the principle of Socila Welfare Nation. ③ The outside director system, which was prepared to secure independence from the management, and the employee representation, which consists of insiders in terms of joint management, have a distinctly different nature. ④ Despite the fact that employee representation is director system recommended by workers, their duty of care and fidelity is always for the benefit of the company. ⑤ There are concerns that the labor-friendly stance of the employee will adversely affect the company's governance structure, but from the standpoint of preparing an efficient control system for company management, it is not simply raising issues based on subjective speculation, but utilizing the positive aspects of the system. ⑥ In connection with the expanded introduction of employee board, the incorporation of the labor director system into the company law can be considered, but under our legal system, a significant paradigm change of the company and labor laws must also be considered.