감사위원회에 관한 2013년 상법개정안의 비판적 검토

Under the Commercial Code amended in 2009, any stock-listed corporation prescribed by Presidential Decree shall establish audit committee(§542-11(1)), and not less than two thirds of the total members of the audit committee of any stock-listed corporation prescribed by Presidential Decree shall consist of outside directors. A member of the audit committee shall be elected and dismissal at a general shareholders' meeting(§542-12(1)). In this case, where the total number of voting stocks of a stock-listed corporation owned by the largest shareholder and their specially related persons or other persons as prescribed by the Presidential Decree exceeds 3/100 of the total number of issued and outstanding stocks of such corporation, such stockholders shall not exercise their voting rights for those stocks exceeding such ratio in the appointment or dismissal of a member of the audit committee (limited to any member who is not an outside director)(§542-12(3)(4)). In Korea, the Commercial Code amended in 2011 to reform the corporate governance and to improve transparency in corporate management due to the fundamental bad influence of the board of directors has enacted on April 15th. In this process, the Commercial Code amended 2011 has adopted executive officer as a new management system. Under the Commercial Code amended 2011, the executive officer shall be elected at a board of directors(§408-2(1)), provisions relating to mandates shall apply mutatis mutandis to the relationship between the company and the executive officer(§408-2(2)), the terms of office of executive officer may not exceed two years(§408-3(1)). A executive officer, however, may be dismissed from office at any time by a resolution at a board of directors(§408-2(3)). Under the Commercial Code amended 2011, a executive officer shall perform their duties faithfully for the good of the company in accordance with the relevant acts, subordinate statutes and the articles of incorporation(§408-9, §382-3), no executive officer shall, without the approval of the board of directors, effectuate for his own account or for the account of a third person any transaction which falls within the class of businesses of the company or become a member with unlimited liability or a director of any other company whose business purposes are the same as those of the company(§408-9, §397), a executive officer may effectuate a transaction with the company for his own account or for the account of a third person only if he has obtained the approval of the board of directors(§408-9, §398). The 2013 Amendment to the Korean Commercial Act by the Ministry of Justice attempts to improve upon the method of election and dismissal of a member of the audit committee and adopt mandatory executive officer in the stock-listed corporations establishing the audit committee prescribed by Presidential Decree. There are, however, many legal and practical problems of the provisions relating to the method of election of a member of the audit committee and relating to attempts to adopt mandatory executive officer in the largest stock-listed corporations establishing the audit committee. In this paper, thus, I have investigated the legal and practical problems of provisions relating to the method of election of a member of the audit committee and attempts to adopt mandatory executive officer in the largest stock-listed corporations under the 2013 Revised Bill of the Commercial Act, and suggested the settlement methods of the problems.