환경에 따른 기업지배구조의 선택 - Hard Law vs. Soft Law -

The debates on corporate governance which have begun in the United States spread to the United Kingdom and Europe, and then around the world including Japan and Korea. The history of corporate governance is same to the history of corporate scandals and crises. Most of the countries have experienced companies' scandals and crises, but the causes of said problems varied depending on each nation's respective national, economic, social and cultural environments. The number of the listed companies, severeness of mandatory disclosure and transparency requirements, differences between shareholder supremacy and stakeholder protectionism, presence of institutional investors, hedge fund, foreign investors, etc. are also decisive factors in selecting corporate governance model. The writer of this paper compares corporate governance structures of several states including the United States, the United Kingdom, Germany, South Korea and Japan. The United Kingdom and Germany could be classified as countries which adopting soft law approach, because they prefer rules of self-regulation as non-binding such as Governance Code than mandatory law. Under such system, corporations are requested to either comply with the self-regulation or explain why they can not comply. In the United Kingdom and Germany, the role of institutional investors is greater than that of hard law nations. Under the soft law, the government easily controls the market by controlling institutional investors. On the contrary, the United States, Japan and Korea have adopted hard law approach by relying on statutory-(mandatory) rules in controlling market. Here, the role of funds including hedge funds, individual investors and speculators is greater, and self-regulation is not appropriate under such circumstance, rather mandatory enforcement of law is more effective. Japan and South Korea are similar to the United States in law enforcement and governance rules, where hard laws are dominant. However, the Corporate Governance under the Korean Commercial Code is not yet firmly established: It still is groping for a better corporate governance model that is most suitable to Korean corporations.