주식회사의 실체와 주체 사이에서 -경제 민주주의와 인권 경영의 철학적 정초-

This article examines the topic of human rights management from the perspective of management participation or joint decision-making by the employees of a company. Human rights are always framed as a counter-concept to power. In this sense, human rights in human rights management refers to the rights of employees in opposition to management power, that is, the power of a company. In addition, if the human rights of citizens in opposition to state power are represented in the political rights of citizens to elect the representatives of the state, then it can be said that the human rights of workers within a company are also represented by the right to elect those with the highest power within the company that they must obey. In this respect, the issue of human rights as workers, rather than those as citizens, is connected to corporate governance. However, Korean corporate law does not recognize the right of workers or employees to participate in the election of those who hold the highest power within a company. Rather, the right to elect the board members of a company is only granted to the general assembly of shareholders. The main purpose of this article is to argue that the exclusive authority of shareholders to appoint directors is not based on the nature of joint-stock companies and that granting employees the authority to appoint directors is more appropriate in terms of not only the respect for human rights but also corporate management. To this end, this article first distinguishes between the substance and subject of joint-stock companies and makes it clear that shareholders are merely the basis of the capital substance of a corporation and are not subjects of corporate activity. Furthermore, when legally defined as a person, a stock company is not considered property owned by anyone but is instead designed to be its own owner. However, because a corporation is not a natural person, someone must play the role of the subject of corporate activity. In this sense, by forming a board of directors for a stock company, the subject of corporate activity is established. Nevertheless, because a stock company is a corporate form in which stock ownership and corporate management are separate, there is no reason to give shareholders the exclusive authority to install the board of directors as the subject of corporate activity. This subject establishment can be achieved in various ways depending on the purpose of the corporation. Thus, it is neither unfair nor impossible for workers to participate in the establishment of the board of directors of a corporation. Germany’s labor-management co-determination system is an exemplary case of employees participating in the establishment of the subject of a stock company. In this paper, after introducing these German co-determination laws, we propose a system that grants employees the authority to appoint directors in the public sector and outside directors of stock companies as a measure applicable to the reality of Korea.