미국의 주식회사 지배구조에 관한 연구

The observation that shareholders in publicly held corporations do not really control the corporation by selecting the directors is known as the Berle-Means thesis. A number of writers have argued that various market forces can constrain managerial disloyalty and inefficiency. A final market force comes from larger and more activist shareholders and institutional investors constitute a second type of larger and potentially active shareholder. The law can also affirmatively encourage actions which increase the effectiveness of market forces. The idea of instituting changes in board composition and operation through voluntary adherence to so-called good corporate practices has produced guidelines suggested by a number of other organizations. While the proposals made by these groups and others exhibit considerable variation, there are a number of recurrent themes. One of the most common themes is to change the composition of the board with the goal of increasing the board’s independence from management. The move toward both greater use, and defining the meaning, of independent directors increased after the corporate accounting scandals of 2001 and 2002 involving Enron, WorldCom and other companies. In the Sarbanes-Oxley Act passed in response to these scandals, Congress mandated that companies with stock listed on stock exchanges have an audit committee composed of independent directors. The less which market forces or corporate structure provide accountability, the greater is the justification for vigorous enforcement of duties of care and loyalty for corporate directors and officers.