개정 상법과 제반 실무관행들은 최대주주 견제와 소수주주권 보호에 효과적인가?: 감사위원 선임사례를 중심으로

The audit committee is a committee of the board of directors that independently monitors management. Therefore, the audit committee plays an important role in enhancing the transparency of the business environment and reliability of accounting information. Since the introduction of the audit committee system to improve corporate governance, regulators have continuously supplemented and developed related regulations. As part of these efforts, a separate election system for audit committee members were introduced to the amended Commercial Act in 2020 and other institutional supplements were made. Before the amendment, the Commercial Act required that directors be appointed through a resolution at the general meeting of shareholders before appointing the audit committee members, and the audit committee members were elected from among the appointed directors. However, the voting rights of the largest shareholder were not restricted at the stage of appointing a director, and the voting rights of the largest shareholder were restricted only when audit committee member was selected from among the appointed directors. Thus, there was a problem in that candidates for audit committee members were composed only of directors desired by the major shareholder. This reduced the independence of the audit committee and acted as a hindrance to the effective monitoring function. Accordingly, in the amended Commercial Act, when appointing audit committee members, one of the audit committee members is separated from the other directors and appointed as ‘directors who become members of the audit committee’. At this stage, voting rights of the largest shareholder were restricted. As a result, the audit committee members were able to monitor and check the management from a more independent position. In addition, the amended Commercial Act improved the corporate governance structure and established transparent management by reorganizing the rules for restricting voting rights when selecting members of the audit committee member and relieving the requirements for shareholder proposals. In this study, we examine the impact of the amended Commercial Act on the composition of audit committees in listed companies for protection of minority shareholder rights and check force of major shareholders through two case studies. In the case of Hankook & Company, it cannot be regarded as complete protection of minority shareholder rights in the sense that the amended Commercial Act was used in management dispute of the owner family. However, it is significant in that the minority shareholder played the role of a casting boat in the management dispute between the largest shareholder and the second largest shareholder, checking the largest shareholder and effectively exercising the shareholder’s rights. This case suggests the possibility that minority shareholders can have a voice in management decision as a shareholder of the company, and shows that the company must make management decisions in the direction of maximizing the value of all shareholders. In the case of Sajo Industries, although the audit committee member recommended by minority shareholders was not appointed, it showed shareholder activism of the minority shareholders’ association. This was a precedent for the protection and exercise of minority shareholder rights by showing that the shareholder proposal system under the Commercial Act and the separate election system for audit committee members are a system that actually exercises the rights of minority shareholders and contributes to checking the management. Although the amended Commercial Act is considered to have moved in the direction to check the major shareholders and protect the minority shareholders, the regulations of the amended Commercial Act can still be avoided due to the tricks of companies, so it cannot achieve complete check of the major shareholders and the protection of minority shareholders’ rights. Reflecting the implications of this case, legal grounds should be prepared to regulate acts such as splitting shares and lending shares among affiliates of the company to neutralize the exercise of minority shareholder rights. Furthermore, it is necessary to improve regulations, such as preventing changes to the articles of incorporation that could interfere with shareholder proposals of minority shareholders from being submitted to the general meeting of shareholders. This study suggests the possibility that minority shareholders can exercise their rights and participate in management, and that the company should consider the rights of minority shareholders and make transparent management decisions in a way to maximizes the value of all shareholders. Regulators can use this study as a guide to protect minority shareholders’ rights and expand transparency in the capital market.