小規模株式會社의 監査制度에 관한 批判的 考察

Korean government revised the Commercial Code on May 28, 2009, to designate any joint stock company with total shareholders’ equity at less than a billion won as small scale company, allowing such small scale company to elect one or two directors in total autonomously (the Commercial Code, Article 383 paragraph 1 proviso), and not to elect anyone as auditor (Proviso of Paragraph 4, Article 383 by Commercial Code). Therefore, at any company eligible as small scale company with one or two directors optionally, the Board of Directors cannot naturally be constituted. Hence in case of such companies, the powers of the Board of Directors and, in case of companies without any elected auditor, the powers used be vested to auditor, are fully transferred to the shareholders' meeting (Article 6 of same Act). In case of these companies, the function and power of shareholders' meeting are even further strengthened and expanded so that the shareholders' meeting appears as the versatile institution. This enactment is understood as grounded fundamentally on the withering of the comprehensive audit system of joint stock company so far, and further on the recognition by the legislators that the audit function in relatively small corporations is in fact close to non-existence and exists only as part of the judicial governance structure. Therefore, the revision this time may be regarded as defining such small scale corporations and adopting the measures to enhance the viability of audit etc. for these corporations outside the boundary of existing corporate governance structure. As the concrete realization measures hereof, size of joint stock company is categorized in terms of capital amount, and the companies with capital not exceeding a certain amount are designated as small scale joint stock company, so that companies eligible for this category are not only allowed to remove unnecessary institution within existing joint stock company’s governance structure, but also mandate the shareholders' meeting of the companies which opted to remove such institution, to directly perform the function that used be performed by the institutions so removed. However, this judicial changes may be seen as almost epoch-making in the viewpoint of overall legal system of existing joint stock company, but leaves a number of problems and room for debates. Furthermore, it is feared that such judical changes was treated too lightly and the possibility to be recognized as an legislation was overlooked, treating such change as an issue limited to relatively smaller companies and pursuing only the efficacy and convenience on the governance of relevant companies, ultimately shaking the fundamental system and theory of joint stock company system. In other words, the reason are as follows; Firstly, in case of relevant companies, its is not clear how the limited liability principle for shareholders as the single most important characteristic of joint stock company can be defined and interpreted. Secondly in case of relevant companies, it is not clear how the separation between ownership and management as another most important characteristic of joint stock company can be interpreted and who shall be liable for managerial responsibility for the company. Lastly and thirdly, suspicions are raised as to whether audit function for relevant companies can really be materialized in this judicial system, or audit system itself is waived for relevant companies because audit function was impossible originally. In this regard, this study crystallized the contrariety of revised judicial system and presented the irrational point of current system to pursue the ways to improve such mishaps, by review and analysis through theoretical analysis, focusing on the 3 problems or suspicions presented above.