주식회사 이사의 임기에 관한 상법 제383조 제2항 및 제3항의 법리와 그 운영상의 법적 쟁점

As to the term of office of directors, Korean Commercial Act prescribes as follows:(1) The term of office of directors may not exceed three years(s. 383(2)) ; (2) The term of the preceding paragraph may be extended by the Articles of Incorporation up to the termination of the ordinary general shareholders’ meeting convened in respect of the last period for the settlement of accounts comprised in his term of office(s. 383(3)). These provisions aim to do multiple functions such as to provide the core method of controlling the management by shareholders, especially by minor shareholders ; to terminate the term of office at the closing of annual shareholders’ meeting at the same time ; to induce the management to be responsible for his job; to secure the stability of management ; to coordinate the various conflicting interests surrounding the company. Considering these functions of Article 383(2)(3), the provisions are compulsory, not voluntary. Beyond these particular statutory provisions, the Korean Commercial Act is silent on the other matters arising from the term of office of directors, leaving the issues to the Articles of Incorporation. Based on the survey of Articles of Incorporation adopted by listed companies in Korea, this paper classifies the term of office into the following categories : (1) completionby-articles-type and delegation-to-shareholders’ meeting-type ; (2) confirmed-period-type and ceiling or limit-period-type ; (3) same-period-type(single system) and different-period- type(dual or multiple system) ; (4) simultaneous-expiration-type and staggered-term-type. This paper also analyzes the legal issues on the requirements for the beginning of the term of office, the date of the beginning of the term, the adjustment of the expiration date to the close of the ordinary general shareholders’ meeting, the alteration of the terms through the articles revision, and suggests some legislative proposals thereof.