상법상 사외이사 제도 개선방안에 관한 소고 - 단기적 입법과제를 중심으로 -

In the wake of the Korean financial crisis in late 90's, Korean government has introduced mandatory independent director structure with respect to listed corporations in order to enhance the corporate governance system in Korea. Under the Commercial Code(the "CC"), any listed corporation shall have the number of independent directors not less than one fourth of total number of its directors: Provided, however, that any listed corporation having assets not less than two trillion Won as of the end of the most recent business year(the "large listed corporation") shall have at least three independent directors and at the same time have the number of such independent directors not less than a majority of the total number of its directors. Also, an independent director must not engage in regular business of the corporation concerned and meet a complicated and long list of negative qualifications in terms of his competence and integrity as well as his independence from controlling shareholders and management. The CC mandates large listed corporations to establish a committee that has an exclusive power to recommend candidates for an independent director, within its board of directors, and have the number of independent directors not less than a majority of the total number of the recommendation committee members. Despite the introduction of the independent director structure, there have been arguments that the level of corporate governance of Korean companies is still far behind the global standard and the raison d'être of the independent director structure needs to be revisited. While reserving a conclusive answer on the fundamental question given the lack of consensus from the academic sides and practical evaluation on the effectiveness of the independent director structure, the author suggests a number of short-term agenda for legislation to make up for the unreasonable points on the independent director structure. Assuming the current independent director structure, the author pays attention to the necessity of mandatory executive officer structure with respect to listed corporations having a board with majority of its members consisting of independent directors. She also suggests to curtail and adjust the mandatory disqualification list applicable to the independent directors: that is, categories of incompetents, persons dismissed due to violation of certain financial statutes, largest shareholder, specially-related persons, principal shareholders and other influential persons. She further emphasizes the importance of the devices to practically enforce the disqualification list. With respect to the appointment procedures, she insists on the needs for sufficient informations on the candidates for an independent director and proposes to improve the recommendation committee structure. Finally, she briefly analyses a few issues involving optional independent director structure applicable to the non-listed corporations and proposes certain legislative solution.