2009년 1월 상법 개정에 의하여 감사위원인 사외이사선임방법과 소수주주권 보호는 개선되었는가?－KT&G 사건을 계기로－

After recent financial crisis, Korea has adopted aspects of the US corporate governance system. The audit committee, which was introduced into Korean law raised controversial issues in interpreting the Korean Commercial Code ("KCC"). This paper reviews the problem which keeps recurring despite reform of the KCC. In particular, this paper examines the election procedures of an outside (independent) director to be a member of an audit committee and, re-examines the KT&G case (KT&G is one of the top listed companies in Korea), as a leading case. The KCC requires that listed companies have an audit committee comprised of three or more directors and that the outside directors shall exceed 2/3 of total members in the audit committee. However, the KCC allows not the board but the shareholders’meeting to appoint and remove the audit committee members in the case of listed companies, unlike other countries. In the KT&G case, the court had ordered a preliminary injunction prohibiting a resolution by shareholders to elect outside directors doubling as a member of the audit committee by motion of foreign investors including Steel Partners. The KT&G court opined that the board has the authority to select how it would go about electing the board members and audit committee members. In sum, the KT&G court held that it was legitimate for the management of KT&G to choose between 2 methods of election: 1) separate elections of board, then the audit committee or 2) combined/concurrent election of board members and members of the audit committee in one election. However, after the amendment to the KCC in January, 2009, the KCC provides for only one method to elect board members (1st instance above). Under the current KCC, the only possible method for election to the audit committee is that board members will first be chosen en bloc regardless of audit committee matters, and then, as a second-tier selection process, among the elected outside directors, the members of audit committee which comprised of three directors at least, will be elected. The direction indicated by the forgoing amendment may be deemed advantageous for existing management or the largest shareholder(s) or the controlling shareholder(s) by ignoring minority shareholder's interest. The KCC also has the 3% voting limit rule protecting minority shareholder’s interest against abuse of any controlling shareholders that any shareholder who holds more than 3% of the total issued and outstanding shares (excluding non-voting shares), may not exercise his/her vote in respect to such excess shares beyond the above limit, in relation to selecting a member of an audit committee or an auditor. The 3% voting limit rule can play a significant role in separate elections of board and audit committee members. Once the whole board members were elected according to the will of the majority shareholders, the 3% voting limit rule, which will be applied to the election of audit committee members, does not represent much in the next election. In this regard, both methods should have been preserved in the 1999 amendment. This paper also reviews another problem with the KCC's recent reform in January, 2009 regarding the priority of conflicting provisions. This is related to the conflict issue between protection of minority shareholders’ rights and prohibition against abuse of them. According to subsection (2) in the Article 542-2 of Section 13 (Special cases for Listed Companies) of the KCC, this section shall be applied with priority over other sections of this Chapter (Chapter IV is about The Stock Company). This section has raised a key issue over how to construe "applicable with priority over other sections of this Chapter". A lower court held that this section should supersede any other sections regarding the Stock Company regulations insofar as the requirement for minority shareholder's action, after the amendment to the KCC. This holding stands in contrast to the Korea Supreme Court's decision made prior to the amendment to the KCC. The Supreme Court already held that any shareholder-proponent may invoke the shareholders' meeting convening process if the requirement described in the Special cases for Listed Companies is satisfied, or if any requirements in one of the other sections in the Stock Company Chapter of the KCC is satisfied, respectively. The Supreme Court's position is not just a historical footnote but still a guideline in practice. Therefore, despite the lower court's position, the latter apparently should be the prevailing view.