감사위원 선임 관련 법적 문제

There is once again a heightened interest in the method of appointing audit committee members. As of the end of January 2017, there are three related bills pending at the National Assembly calling for an amendment of the Korean Commercial Code (KCC). The bills propose different methods of implementing a separate election, under which directors who will be members of the audit committee would be elected separately from directors who will not be members of the audit committee at the director appointment stage. While the KCC currently requires large listed companies to follow a single election method in connection with the appointment of audit committee members, under which directors are first appointed at a general meeting of shareholders and then audit committee members are appointed from among such directors, the adoption of the separate election method has been proposed for the goal of enhancing the independence of audit committee members. With a view to limiting large shareholders' influence on the appointment of audit committee members, the KCC and the Act on Corporate Governance of Financial Companies contain various limitations on the exercise of voting rights in relation to the appointment of audit committee members. For listed companies, in connection with appointing audit committee members that are outside directors, each shareholder is subject to limitation of voting rights for stocks that are in excess of 3% of the total issued shares. In connection with appointing audit committee members that are not outside directors, the largest shareholder and related persons are subject to limitation of voting rights for their combined holdings that are in excess of 3%, whereas there is no such limitation on voting rights for all other shareholders besides the largest shareholder and its related persons. In connection with dismissing audit committee members, there is no particular limitation relating to those who are outside directors, but in connection with dismissing audit committee members that are not outside directors, as with their appointment, the largest shareholder and related persons can only exercise voting rights for up to 3% of the total issued shares on a combined basis. Such complicated limitations on voting rights are currently in force in relation to the appointment and dismissal of audit committee members. If, pursuant to the separate election method, these limitations were to first apply to the appointment of directors who will become audit committee members, it would give rise to an issue of imposing excessive restrictions on the shareholders' right to appoint directors of a company. Korean law adopts the one share, one vote principle, and the shareholders' right to appoint directors of a company is an essential property right of shareholders, which relates to the institutional structure of a stock company under which shareholders appoint directors at a general shareholders' meeting and entrust them with management of the company. The separate election method, which has the effect of extending the limitation of voting rights (only applicable to the appointment of audit committee members pursuant to the single election method) to the appointment of directors who will be audit committee members, could infringe upon the essential elements of shareholders' rights. Especially, if it is combined with cumulative voting, it could give rise to a distortion in the control right, inconsistent with the actual shareholding ratio, because the controlling shareholder may lose the right to appoint the majority of directors if all of the outside directors that are audit committee members are appointed by the second largest shareholder or others. In light of the foregoing, the single election method seems to be more reasonable than the separate election method which runs the risk of infringing upon essential elements of shareholders' voting rights, a constitutionally granted property right, and is exposed to various problems in terms of the principle of proportionality or the principle of equality. The controversy surrounding the appointment of audit committee members can largely be attributed to the adoption of provisions limiting voting rights relating to the appointment of audit committee members for the purported goal of strengthening the independence of audit work, without regard to the interaction of legal principles. Audit committee members being members of a committee within the board of directors, it does not fit the legal character of the audit committee to have its members elected at a general shareholders' meeting pursuant to the provisions limiting voting rights. When the relevant law is headed towards enhancing the independence of boards of directors by gradually strengthening various requirements for outside directors, including the number of outside directors and independence requirements for directors, it would be consistent with such trend to have the board of directors with enhanced independence appoint audit committee members from among the directors, as it does with respect to other committees within the board of directors. Moreover, limiting voting rights relating to the appointment of audit committee members is not the sole means of enhancing the independence of audit work. It would be more reasonable to work toward that goal by strengthening the independence of outside directors or improving the system relating to external audit. Review of legislations in other countries such as the United States and Japan also reveals that the appointment and dismissal of audit committee members is handled by the board of directors and that there is no limit imposed on shareholders' voting rights in relation thereto. It is difficult to find examples similar to the Korean system in which the appointment and dismissal of audit committee members is voted on at a general shareholders' meeting, with complicated limitations imposed on the voting rights of shareholders. In connection with any related legislation, the limitation of voting rights and the appointment method relating to the appointment of audit committee members would need to be reviewed prudently, while taking into consideration factors such as the legislative intent of limiting voting rights, the extent to which shareholders' rights can be legitimately limited, the balance between the legislative intent and the legal interest to be infringed upon, and unfairness to the largest shareholder.