감사 직무대행자의 임기에 관한 고찰

Article 386(2) of the Commercial Act shall apply mutatis mutandis to auditors in accordance with Article 415 of the Commercial Act, and, thus, acting auditor may be appointed by the court, if it deems necessary, upon the request of director, auditor or any other interested party. Although acting director shall automatically lose its position when the incoming director is appointed, it is not clear if the term of office of acting director shall apply mutatis mutandis to acting auditor as well. Historically, the Commercial Act before 1984 stipulated only the maximum period of 1 year for the term of office of auditor, and respective company could have freely designated the term of office of auditor. Thus, at that time, there was no problem in applying the term of office of acting director to acting auditor. However, after the revision of the Commercial Act in 1984, Article 410 of the Commercial Act is regarded as a compulsory provision, which provides that the term of office of auditor shall expire upon the closing of an ordinary general meeting of shareholders convened in respect of the last period for the settlement of accounts within 3 years after his/her inauguration. The legislative purpose of such revision was to guaranty the independency of auditor, and promote the efficiency and effectiveness of the performance of auditor. This spirit shall govern the term of office of acting auditor as well. Term of office less than 1 year is too short for the acting auditor to fully perform its duties after the acting auditor grasps all the financial status of the company, and, furthermore, acting auditor cannot be independent from the shareholders of the company because the acting auditor wants to be appointed as a regular auditor in the next shareholders' meeting. Thus, the term of office of acting auditor shall be construed to expire upon the closing of an ordinary general meeting of shareholders convened in respect of the last period for the settlement of accounts within 3 years after his/her inauguration as in the case of auditor.