이사보수환수에 관한 회사법적 검토 - 대법원 2015. 9. 10. 선고 2015다213308 판결 -

According to the reviewing case, the director’s compensation could be retrieved by corporation if it substantially did not have a rational proportionality and a balance between compensation of director and his or her dedication to corporation. A corporation should compensate director only if the shareholders’ meeting consented on the director’s compensation. Considering the decision making process of director’s compensation, the clawback of director’s compensation by the reason of non-rational proportionality is casting some questions from the perspective of corporate law. As far as corporate law is concerned, the decision of shareholders’ meeting should be implemented by CEO and cannot be cancelled without the strict nullifying process provided in corporate law. As the director’s compensation is one of the decision of shareholders’ meeting, it cannot be clawbacked by the reason of unbalance between compensation and dedication to corporation. Even though the worldwide trend of regulations on the director’s compensation after the global economic crisis, the interpretation of the structure of corporate law on the director’s compensation should be reconciled with corporate governance. Some provisions are advised to be added to corporate law or other special act to be able to clawback the director’s compensation and the process thereof, and the requirements need to be articulated therein. In fact, Say on Pay principle that recently attracted concerns of corporate laws in western states is not news to our corporate law because the director’s compensation is invalid without the consent of the shareholders’ meeting according to Korean Commercial Act. Instead of a clawback of director’s compensation, the liability of director can be recommended as a solution to retrieve the unproportionate director’s compensation prior to any amendments of corporate law on the clawback.