회사법상 기업지배구조의 적용기준에 관한 적정성 평가와 합리적 지배구조모델의 구상－지배지분율, 상장, 자산, 주주수 간의 조화를 바탕으로－

The corporate governance model is generally classified as two different kinds, American one-tier and European two-tier system in international dimension. Korean corporate governance of listed companies under the Commercial Act is similar to the one-tier model, under which non-management independent outside directors are playing supervisory roles in the board. It is important that one-tier system, originally based on the dispersion of ownership or separation of ownership and management in the corporations, has been applying to the American large public corporations. But, it is an irony that Korean governance system is subject to the American one, although the degree of concentrated ownership has been remarkable and increasing gradually in recent years. In average, a controlling shareholder has more than 30% of all the voting shares in approximately 77% of all listed companies. It means that a largest shareholder is substantially exercising his absolute control over the company. In order words, there seems to be a serious unbalance between the ownership and governing structures in designing corporate governance. Moreover, the Commercial Act takes mandatory posture in corporate's selection of the governance types, which were designed and statutorily specified on the base of two standards of both listing and size of assets with taking into no consideration the degree of ownership dispersion. Meanwhile, the NYSE listed companies manual permits corporate's flexibilities in appointing outside directors in the board in case where any shareholder has more than 50% of voting rights in the listed company, in which the asset-size of the company is never being considered. In short, it is important that any nation's economic regime, corporate culture and social features should be comprehensibly taken into consideration in designing more desirable and optimal corporate governance, which should satisfy the objectives of increasing corporate performance as well as effective management control. Accordingly, wider range of corporate governance types should be provided and corporate's freedom to select one of the types should be assured in designing the future corporate governance model for the corporate's productive response against unexpectable changes of environments. And also the public interests also should be protected in the larger listed companies. Any existing corporate governance model of the advanced countries cannot be said to be necessarily desirable in the Korean corporate wold. In conclusion, this paper suggests a newly designed corporate governance model mainly based on the degree of ownership concentration in harmonization with other determinants such as listing and the size of corporate assets. The Model is expected to substantially contribute to the above mentioned purposes in the Korean listed companies. And also this paper stresses that fiduciary duty should be imposed on the controlling shareholder, any non-controlling shareholder holding more than 10% without having any real influence over the corporate's important business affairs should be permitted to be an outside director and the current regulatory internal control system should be moved into Commercial Act and also the control system should be operated on the process-oriented basis in order to protect the controlling shareholder from taking his private benefits of control to be expected and concerned under the new model.