주주와 경영진의 이상한 권력투쟁

Corporate law controls the agency costs between shareholders and managers. The agency costs also exist in firms with the controlling shareholder. The controlling shareholder effectively checks managers. However, the private benefit of control for controlling shareholder may cause him or her to act not in the best interest of all shareholders. This Article offers the view that separation of ownership and control in large public firms has resulted in the power struggle between shareholders and managers. It results in various provisions in corporate law statutes regarding the distribution of authorities between shareholders’ meeting and board of directors. The Korean Commercial Code, like the Delaware General Corporation Law, chose to move in the direction in favor of the board of director’s authority. It does not mean that the Korean Commercial Code encourages the pursuit of private benefit for controlling shareholder-directors. The board’s authority is supposed to be exercised for the benefit of all shareholders and company’s value. However, the stronger the board’s authority is, the more often managers seek the private benefit of control. The Commercial Code handles the problem through minority shareholders’ right, including the shareholder proposal, free transfer of shares, voting rights, etc. The struggle between shareholders and managers reaches its highlight in the contest for corporate control as it was exemplified in the Gucci Group case. This Article argues that the Commercial Code must enhance further the minority shareholder’s rights, but, at the same time, strike the balance between the active market for corporate control and takeover defenses so that the overall balance in the struggle could be achieved in efficient ways.