기관투자가의 경영참여에 대한 고찰⎯ 미국에서의 논의를 소재로

In recent years, attempts to participation in corporate management through Institutional Investors' execise of shareholder rights or M&A have become frequent. However, it is unclear whether the Institutional Investors' involvement in corporate management is due to the exercise of their rights as shareholders or fulfillment of obligations as an asset manager. If this behavior of Institutional Investors is an act of shareholder rights, it is a legitimate exercise of shareholder rights, but if it is an act as an asset manager that receives investment from others and operates it, it cannot be regarded as a legitimate exercise of shareholder rights in that it is an act to maximize the profits of trustors. Recently, the involvement of Institutional Investors such as Pensation funds, Mutual funds, and Hedge funds has been increasing. However, the State Corporate Law in the United States did not take into account shareholders' involvement in corporate management, nor did it predict that shareholders would play a substantial role in management. As such, it can be seen that the US company law chooses Director Primacy. On the other hand, under the theory of Director Primacy, shareholders are obligated to disclose or report under the Stock Exchange Act and the State Corporation Act. Therefore, it has been restricted from allowing shareholders to have a strong influence on corporate management decisions. Institutional Investors are subject to the same restrictions. Institutional Investors exercised stockholders' right to make proposition or the voting right to improve the efficiency of the company's management, but Institutional Investors were excessively involved in management or exercised excessive voting rights, so they failed to fulfill not only their responsibilities as trustees but also as fiduciaries. Since then, the actions of Institutional Investors have gradually changed from a tough exercise of rights to an informal method such as mutual communication and cooperation (Engagement) between the company and shareholders to reduce costs and enhance the effects of shareholder activities. Institutional Investors, an asset management agency, must fulfill their duty of loyalty and care to the asset holder and act to realize the interests of the asset holder. The Fiduciary duty of an asset manager increases the assets of the truster, the management of the investment company should exercise the rights of shareholders to conduct efficient management, and monitor the management from an efficiency point of view. Activities such as participation in management by Institutional Investors must be carried out in an appropriate manner, both as shareholders and as asset managers. The most efficient way to do this is to strengthen monitoring of management activities. A monitoring board monitors management, and as a monitoring board, an institution with independence from the controlling shareholder, such as an independent outside director, is appropriate. Although there is still a lot of controversy over the independence of outside directors, I think it is most appropriate as an institution in charge of monitoring.