주식회사 이사 및 감사위원 선임의 실무상 쟁점-집중투표제 및 감사위원 분리선출을 중심으로-

Article 382, Paragraph (1) of the Korea Commercial Code (the “KCC”) stipulates the right of shareholders to appoint directors as the most principle right of shareholders to engage in the management of a company. In addition, unlike members of the board of directors committee who are generally appointed by the board of directors, members of the audit committee of a listed company over a certain size shall be appointed exceptionally at the general meeting of shareholders pursuant to Article 542-12, Paragraph (1) of the KCC. Therefore, the resolution of the appointment of directors and audit committee members at the general meetings of shareholders of a large number of listed companies which meet the above size requirement is highly significant. Moreover, following the facilitation of shareholders’ rights exercised by institutional investors through the introduction of the Stewardship Code, etc. or recently increasing cases of exercising minority shareholders’ rights, such as making proposals for appointing outside directors or audit committee members, by employees, including employee stock ownership association, many relevant issues are coming up in practice.* Attorney at Law of Kim & Chang, Ph. D. of Law First of all, the practical issue regarding the election of directors of a stock company shall be examined by separating cases where a simple voting system is implemented and where a cumulative voting system is implemented. In particular, for companies where a cumulative voting system has not been excluded in the articles of association, such as financial companies or privatized former public enterprises, there should be a reasonable interpretation maintaining the intent of the cumulative voting system which is to protect minority shareholders’ rights while refraining from damaging the fundamental principle of capital majority rule. The issue related with making decision on the number of directors to be appointed is most concerned in implementing a cumulative vote. With regard to this, if there is any other shareholder’s proposal that is different from the proposal made by the board of directors, it is possible to make a decision in advance on the number of directors to be appointed through a simple voting system at the general meeting of shareholders. The practical issue regarding the election of audit committee members can be examined by separating cases of general listed companies where a collective election system is applicable and financial companies where a separate election system is partially applicable. In particular, as for the scope of separate election of audit committee members, there is a dispute arising in practice since there is no specific provision set forth under Article 19, Paragraph (5) of the Act on Corporate Governance of Financial Companies regarding the scope of separate election when there are several outside directors who become audit committee members. With regard to this, if there is any other shareholder’s proposal that is different from the proposal made by the board of directors, the board of directors is not able to make the decision freely on such matter. Instead, it is appropriate to resolve the scope of separate election of audit committee members by a resolution of the general meeting of shareholders and then to proceed with a separate election procedure. From the legislative view, it is desirable to specify the scope of separate election of audit committee members or stipulate that the general meeting of shareholders should decide the scope.