자본시장법상의 이사회의 성별 구성 특례조항 - 여성이사는 기업지배구조를 변화시킬 수 있는가? -

The trend to increase board diversity is gathering speed as boards continue to be under pressure from both regulators and the public. Generally speaking, there are many different forms of diversity, including race, gender, national origin, sexual orientation and viewpoint. Makeup of corporate boards, however, is closely associated with gender and/or race. Across European companies, corporate boards are increasingly focused on gender diversity as board diversity. Some countries in EU have set binding obligations using strict quotas for male/female rations. In addition, in respect of board makeup, the board has faced pressure to add more women and minorities in USA. The advocates of board diversity have traditionally relied on moral or social justifications to convince people of the desirability of board diversity. But, the business rationales have recently been proposed for advancing board diversity instead of moral or social justifications. In other words, according to the business rationales, increasing board diversity may improve corporate performance or corporate governance. According to the SEC rule, public companies are required to provide disclosure of the extent to which their boards consider diversity in the director nomination process. Furthermore, the California Corporation Code §301.3 was called the Californiaʼs gender quota law for boards of directors and went into effect on January 1, 2019. The California Corporation Code §301.3 requires publicly-held corporations that are incorporated in California or that have their principal executive offices to have at least one female director on their board. In Japan, Tokyo Stock Exchange amended the corporate governance code in 2018. The corporate governance code reflected the recent trend of board diversity. The board is required to consider gender and internationality in respect of board makeup according to the amended corporate governance code. In Korea, this year the Capital Market and Financial Investment Business Act was amended in National Assembly. The Capital Market and Financial Investment Business Act contains the gender quota clause of the board of directors as a kind of one of the affirmative actions. Therefore, the listed companies with total asset valued at two trillion won or more at the end of the latest business year should have at least one female director on their board. Some recommendations are made in this paper. First, the gender quota clause should be stipulated in the Commercial Act. Second, disclosure regulation should be necessary in respect of the gender quota clause under the Capital Market and Financial Investment Business Act.