주주총회 승인결의가 없는 경우 이사의 보수지급청구권 -퇴직위로금을 중심으로-

Under the article 388 of the commercial code in Korea, director’s compensation shall be determined by the shareholders’ approval when there is no such provision in the articles of incorporation. Therefore, a director cannot claim his or her compensation without shareholders’ approval even if internal regulations regarding severance payment to directors or customs for rewards have existed. However, there is a risk of unjustly enriching a corporation or a controlling shareholder through infringement of relevant director’s expectation if such rules are applied strictly. To resolve such paradox, there are two solutions; 1) Assuming constructive shareholders’ approval even in the absence of actual shareholders’ approval; or 2) Applying unjust enrichment theory to solve such issue if constructive shareholders’ approval is impossible.