이사의 회사에 대한 책임의 관점에서 바라 본 보수규제 - 보수 환수제도를 중심으로 -

Recently it was discovered that Daewoo Shipbuilding & Marine Engineering, Hanjin Shipping, Hyundai Merchant Marine paid enormous amount of severance pay and compensation to ex- and incumbent executives while the companies was crumbling due to mismanagement and liquidity crisis. Accordingly, regulation of compensation policy has caught social and academic attention. Under the current commercial code, directors' compensation is required to be determined by the resolution of a general meeting of shareholders of a company unless the articles of incorporation provides for it. Publicly listed companies are required to disclose each director's compensation which is not less than 500 million Korean won and the specific standard and method to calculate the compensation. Unfortunately, the current regulation have not functioned well against the purpose of the regulation. It is necessary to have not only en-post but also ex-post regulation for the effective compensation regulation. As an en-post regulation, it is required to calculate compensation complying with the calculation standard. Clawback policy would function as an ex-post regulation. Compensation could be defined as payment to a director who performs his or her duties carefully and faithfully. Further, compensation should be determined reasonably proportional to director's duties and compensation shall not be unreasonably excessive considering debts and business performance of a company. According to Provision 1 of Article 399 of the Commercial Code, if directors have acted in violation of the laws or articles of incorporation or have neglected to perform their duties, they should be liable jointly and severally for the damages of the company. In case where reasonably proportional relation does not exist between directors' duties and compensation or compensation cannot be regarded as legal and appropriate payment for the performance of directors' duties, it is highly likely that directors would be liable for the damages of the company. However it is difficult to prove liability establishing requirements such as breach of directors' duties, occurrence of damages, causality. Thus, there is limit to pursue liability claims under the Provision 1 of Article 399. The clawback policy can function as a special regulation to the liability pursuing according to the Provision 1 of Article 399. Thus, the clawback policy needs to be structured to supplement the limits of the Provision 1 of Article 399. When considering the clawback policy as the method to pursue directors' liability, directors' compensation shall be clawed back in excess of the legitimate payment. Further, although the payment is not excess, the compensation shall be clawed back when directors commit misconduct performing their duties.