이사의 퇴직금 중간정산을 위한 회사법상 요건에 관한 검토 -대법원 2019. 7. 4. 선고 2017다17436 판결을 중심으로-

Interim retirement allowances have been addressed as an issue under the labor related laws or tax laws, but there was no academic discussion on the requirements or effects under the company law. The Supreme Court 2019. 7. 4. decision 2017da17436 (hereinafter referred to as "the Subject Judgment") is significant in that it is the first case to deal with the legal requirements on the interim settlement of directors' retirement pay as the main issue from the company law perspective. The Supreme Court decided that the interim settlement of directors’ retirement should be valid only if such interim settlement is allowed under the articles of incorporation of the company or by the resolution of the general shareholders’ meeting. There is a consensus on the purpose of the ruling that it needs to strictly regulate the remuneration of directors. However, the Subject Judgment is contrary to the existing cases and general view that under Article 388 of the Commercial Code the shareholders' meeting set only the remuneration limit of directors, and that the specific amount of payment, timing of payment, and payment method can be left to the board of directors. In the case of interim settlement of retirement allowances for directors which are subject to deductions under the Corporate Tax Law, the tax law does not require a resolution of the general meeting of shareholders for the interim settlement itself. Thus, there is a difference in requirements for interim settlement of retirement between the company law and the corporate tax law. The Subject Judgement adds a procedural burden to companies requiring to hold a general shareholders’ meeting to approve interim settlement of directors’ severance pay. However, there is a concern that such decision cannot contribute to any substantial improvement in regulating directors’ remuneration but only add costly burden on the companies. Considering Article 388 of the Commercial Code and the Supreme Court’s precedent decisions regarding directors’ remuneration, the general shareholders’ meeting of a company should approve the total amount/limit of directors’ remuneration and set the guideline on how to allot such remuneration among directors. Accordingly, whether to pay interim retirement allowances for directors could be determined by the board of directors as long as such allowances are within the total amount/limit of directors’ remuneration and not deemed excessive compared to their duties and tasks.