이사·감사 선임에 있어서 회사법상 법리 검토- 대법원 2017.3.23. 선고 2016다 251215 전원합의체 판결 -

With respect to the election of directors and auditors, the Commercial Act provides for the resolution of the general meeting of shareholders to require it to decide on the election of directors and auditors. The Commercial Act stipulates also that the elected directors and auditors are in a delegation relationship with the company. Supreme Court recently changed the existing ruling about the necessity of contracts for the appointment of directors and auditors. According to the recent decision the elected directors and auditors may obtain the status of directors and auditors without separate appointment contracts, after the approval of the elected at the general meeting of shareholders. However, this decision is under some criticism in terms of company law. First, although the general meeting of shareholders is a decision-making body according to Article 382 (1) and Article 409 (1) of the Commercial Act, it is still difficult to regard it as a business execution body. Second, it is inconsistent with the mandate of Article 382 (2) of the Commercial Act that the directors and the auditors can perform their duties without a delegation contract(appointment contract) simply because they are delegated certain powers by the company. Third, it doesn't ruin the purpose of Article 409 (2) of the Commercial Act to demand the representative director’s subscription for auditor’ appointment. Moreover, it is difficult to say that the appointment of an auditor can not be entrusted to the representative director only because the representative director is subject to audit. In conclusion, although it is meaningful that the case law has more firmly ensured the powers of shareholders' management participation and management supervision, not only subscription and acceptance as a principle of civil law but also the appointment contract should be above the resolution of the general meeting of shareholder.