지배주주 일가인 이사 또는 경영진에 대한 양도제한조건부 주식 부여의 절차적 통제 강화

Performance-linked stock compensation has been introduced in South Korea as a means of aligning the interests of executives and employees with those of shareholders. However, given that most listed companies in Korea have governance issues related to the controlling shareholders, performance-linked stock compensation can be misused as a tool for controlling shareholders and their families to reap benefits at the expense of non-controlling shareholders and companies. In particular, as some listed companies recently granted RSUs (Restricted Stock Units), one of the performance-linked stock compensation forms, to controlling shareholders’ family members who serve as board members, there have been discussions regarding whether to prohibit companies from granting RSUs to controlling shareholders and their families and regulate RSUs strictly in a similar fashion to stock options. However, in order to achieve the objectives intended for RSUs, companies should have the autonomy to design RSUs and performance-linked stock compensation plans that are tailored to their specific business conditions. Rather than regulating the design and structure of performance-linked stock compensation, this paper argues that the procedural scrutiny of performance-linked stock compensation should be strengthened when it is granted to controlling shareholders and their family members. Although the Korean Commercial Code requires shareholder approval for the compensation of controlling shareholders and their family members who serve as directors, most companies only seek shareholder approval for the maximum amount of annual compensation amount for all directors, which the Korean courts have recognized as a legitimate practice. Through a comparative analysis of the control mechanism for executive compensation demonstrated in the recent Delaware court decision on Tesla’s compensation package for Elon Musk, this paper suggests recommendations to enhance shareholders’ control over performance-linked stock compensation for controlling shareholders and their family members. Specifically, this paper proposes (a) to separate the compensation agenda for controlling shareholders and their family members from the decision on the maximum annual compensation decision for the rest of the board; (b) to require companies to disclose specific details of the performance-linked stock compensation for controlling shareholders and their family members at the time of convening the shareholders’ meeting; (c) and to mandate companies to obtain the majority of minority approval for pay-for-performance stock grants to controlling shareholders and their family members.