집행임원제도의 제한적 의무화에 관한 쟁점사항 검토

Recently, Korea’s Ministry of Justice has announced that it will amend Article 415 bis 2 of the Commercial Code to strengthen the supervisory function of the board of directors. There has been a sort of self-contradiction under the current system[esp. in a company which has the audit committee] in which the function of management and supervision is all concentrated onto the board of directors. To head off this inconsistency the draft revised bill would compel a company which has audit committee to introduce executive officer system and under the system, the executive officer is banned from serving as chairman of the board. Legislative intent enunciated by the department is recovery of the principle of checks and balances and enhancement of transparency in the arena of corporate governance. But the business community has expressed its concern in a high tone that enforcing uniformed executive officer system could cause several side effects and a lot of confusions[especially to those listed companies which have assets more than 2 trillion won, forcing the system is considered as causing unnecessary trouble while no other countries do so]. According to the business circle, if the system will be enforced, Korean-style speed-based management will no longer be applicable. Further, they say that the system will encroach upon the companies’ autonomy seriously and be incompatible with the spirit of the Constitution of the Republic of Korea in respect of breaking the balance of legal interests. When South Korea revised its commercial code in 1999, it tried to have greater transparency in corporate governance by introducing outside director and audit committee system. However, it didn't adopt executive officer system based upon the perception that company's ultimate goal lie in pursuing profit, not in enhancing transparency. In case of listed company, many numbers of directors were replaced by outside directors, when outside director system was compelled by law. However, non-registrated officers practically managed company even though they are just commercial employees or delegated people[it is perceived irrational and inefficient to have board of directors manage the company, since outside directors who are the majority of the board are not well-versed in the internal affairs of company]. Under the circumstances in which these non-registered officers are able to participate in crucial part of management but free from responsibilities, the introduction of executive officer system in 2011 was accepted not only necessary but also desirable. But there was also criticism in the perspective of effectiveness because company can decide whether to have executive officer, and even in case where company introduced executive officer, it is free to have non-registrated officer as well. For these reasons, the draft revised bill of commercial code has enforced implementation of executive officer only to company which has audit committee. But it is high time that we should reconsider it. Think of RMBCA's case. It previously enforced certain kinds of officers, but as of now it is totally changed. Whether or not to have an executive officer is an option, and it does not specify any kinds of officers allowed to have. It is somewhat hard to generalize the relationship between company and executive officer, since the relationship can widely vary by articles of association or contract. In managing the company,professionalism should be emphasized more than anything. There are small companies that have agent cost like venture companies because ownership and management is well-separated, but there are also larger companies which have smaller agent cost because they have their own controlling shareholders. Even though executive officer system itself has several merits to be lauded both in theory and practice, it also has defects which can not be easily undone. More than anything else, executive officer system can retard decision making process in a company. If we only focus on transparency, efficiency and maximization of interests of shareholders, which are two most important pillars in the development of economy based on the company system, can be ruined.