회사지배구조 관련 회사법제의 나아갈 방향 - 2008년 상법개정안 검토 -

Abstract

The bill on amendment to commercial law has been proposed for consideration on May 7th, 2008. It has several clauses about the reform of corporate governance in corporate law like as the introduction of executive officer, corporate opportunity doctrine, electronic voting system, and the extension of director's self dealing transaction. Those clauses have been hotly debated until now and have not come to an agreement yet. In this essay I try to analyze the each different points of opposing views and to conclude which point of the views would be the more resonable. First, I come to reach the conclusion that the electronic voting(section 368 4) has little effect on the discussing procedure in the meeting. There is little possibility of impulse voting, because electronic voting might not influence the intent of active shareholders who want to attend the meeting and it might not induce the shareholders who were usually unconcerned with the meeting to vote. Second, a clause about the definition of executive officer needs to be added in the bill. The executive officer isn't a new or unseen one in the organization of corporation in Korea. Vice president, senior executive officer, executive officer and vice executive officer are similar name to executive officer of corporation law of America, However, even if the name of executive officer were same in each corporations, he or she has different authority compared to that of other corporation's officer. The clause about definition of officer is needed for the unity in using the names of officer. Third, corporate opportunity doctrine should be introduced as a independent clause not as a kind of director's self dealing transactions. The doctrine has been classified into one of the examples of violating director's duty of loyalty, not into the director's self dealing transactions. And the clause about corporate opportunity(section 398 ③) demands to approve the director's act in advance by board of directors and fairness of the act. The demand of approval and fairness is too rigid for corporation and directors, because the corporation would suffer no harm from the act of director if it were fair to the interest of corporation. The opposite views say that the reform proposal may cause enterprisers to slump and economy to be unstable. But if we supplement some problems of the clauses, those are requisite for the protection of interests of corporation and shareholders. Such legislation about corporate governance will give corporations a frame of sound development.