주식회사의 이사에 관한 상법 개정안의 비판적 검토- 이사의 선임에 관련된 개정을 중심으로 -

In the 22nd National Assembly, a number of amendments to the Commercial Act related to the appointment of directors were proposed. This is to reasonably adjust the conflict of interest between controlling shareholders and general shareholders, which has been pointed out as the main cause of the Korea Discount. Accordingly, the amendments introduce independent directors and require that more than 1/3 of the board of directors be independent directors in order to strengthen the fairness and transparency of decision-making and performance of duties in listed companies and to enable the board of directors to properly check illegal and unfair acts by executives. However, the following problems are inherent and require reexamination. Namely, 1) The independent directors in the amendments are hardly different from existing outside directors. 2) It is questionable whether it is necessary to abolish the outside director system that has been in place for more than 20 years and introduce new independent directors, citing problems that can be resolved by revising and supplementing some regulations related to outside directors. 3) The amendments do not mention at all the reasons for increasing the proportion of independent directors and their effectiveness. 4) Another dispute may arise due to the unclear legal text regarding the scope of the revised bill's business execution directive and the independent function it performs. On the other hand, the amendments requires cumulative voting based on the premise of large-scale listed companies, prohibits exclusion of cumulative voting even by the articles of incorporation, and restricts the voting rights of the largest shareholder. However, the following problems are inherent and require reexamination. Namely, 1) Mandatory cumulative voting can only be rationalized if it is carefully decided by comprehensively reviewing the size of the company, whether it is listed, and exercise requirements, but the amendment does not analyze and review the pros and cons of mandatory concentrated voting in depth. 2) The amendment applies Article 542-6, Paragraph 2 in relation to the requirements for requesting cumulative voting, but it is unclear which of the requirements specifically refers to, which causes confusion in interpretation. 3) The unclear wording of the amendments may cause confusion regarding the request period for cumulative voting. This is because cumulative voting must be requested 7 days prior to the date of the general shareholders' meeting for unlisted companies and 6 weeks prior for listed companies. 4) It is reasonable to restrict the appointment of executives who have been sentenced to imprisonment or other punishments in relation to company business, but it is difficult to determine its validity because the scope of “crimes prescribed by presidential decree” is unknown.