이사의 선임·해임에 관한 쟁점사항 검토

Under the Commercial Act, the directors shall be appointed at a general shareholders' meeting(§382-1), the provisions of the Civil Act regarding delegation shall apply mutatis mutandis to the relationship between the company and the directors(§382-2). By the way, the outside directors are directors who are not engaged in the regular business of the relevant company, and do not correspond to any of the disqualifications(e.g., directors, executive directors and employees who are engaged in the regular business of the relevant company, or directors, auditors, executive directors and employees who have engaged in the regular business of the relevant company within the latest two years etc..), where any outside director falls under any of the disqualifications, he/she shall be removed from office(§382-3). Meanwhile, a director may be removed from office at any time by a resolution adopted at a general shareholders' meeting under the Article 434: Provided, that where the term of office of a director has been determined and his/her removal is made without justifiable grounds before the expiration of his/her term of office, he/she may file a claim for damages caused thereby against the company(§385-1). And if the removal of a director is rejected at a general meeting of shareholders, despite the director having engaged in inappropriate activities or any grave fact in violation of an Act, subordinate statute, or the articles of incorporation in relation to the performance of his/her duties, a shareholder who holds no less than three percent of the total issued and outstanding shares may request the court to remove the director, within one month from the date of adoption of the above resolution by the general meeting of shareholders(§385-2). However, there are some unclear contents about the appointment and dismissal of the directors, and there have been controversial interpretations. Therefore, it is necessary to examine the contents of the theories and judicial cases focusing on the major issues related to the appointment and dismissal of directors, to identify the problems involved and to make reasonable interpretations and legislative amendments on the premises. The first, 1) In the case of restricted ability, the reason for disqualification of all directors, not the reason for disqualification of a listed company, is to be defined. 2) Even though the Commercial Law stipulates reasons for disqualification to ensure the independence of outside directors, the largest shareholders still recommend outside directors in business practice, so a supplementary measure is needed. 3) The reason for the additional disqualification of the outside director of a listed company is that it is too broad, comprehensive and too strict for those who can not faithfully carry out their duties or influence the management of the company. 4) The scope of the involvement of the related parties should be reviewed. 5) The composition and authority of the Outside Director Candidate Recommendation Committee, which effectively closes the shareholder's recommendation for director, should be readjusted. The second, 1) In the case of dismissal of directors, it is necessary to clarify the subject of the request for dismissal in consideration of the recent ruling of the Supreme Court of the Supreme Court. 2) To clarify the relationship between the general provisions and exceptional provisions regarding the request for dismissal. (3) To prescribe clear details on the calculation of the amount of damages caused by unfair dismissal, so as not to allow the court to abrogate the statute of limitations in the case law.