이사의 보수 관련 법적 쟁점과 상법 개정 검토 -RSU, 보수결정시 특별이해관계인 및 Say on Pay를 중심으로-

Recently, several South Korean companies have adopted restricted stock units(RSUs) as part of their executive compensation, sparking controversy. The effectiveness of the recent revision of the Venture Business Act, which introduces an exception to the treasury share acquisition rule under the Commercial Code, may be somewhat limited. Second, while the Commercial Code provides a regulatory framework for stock option grants, it lacks an equivalent provision for RSUs. Third, the current framework only permits RSU grants using treasury shares, which may restrict their overall effectiveness. The fact that the Commercial Act requires the general shareholders' meeting to determine the compensation of directors can be interpreted as determining individual compensation, and such interpretation is within the scope of the text. After such a change in precedent, it is necessary to inform shareholders of various details, such as the compensation payment plan for individual directors, and how performance-related and non-performance-related compensation is structured. However, it is reasonable to do so through the Articles of Incorporation, and not through a revision of the Commercial Act. There are also procedural issues regarding the compensation of directors. There is a possibility of conflict of interest when directors decide on compensation. In this situation, the court ruled in favor of the issue of whether a director who is also a shareholder is a person with a special interest in determining compensation. This is an acceptable ruling in itself, but it leaves legislative issues to be resolved, including cases of one-person shareholder companies. As a means of controlling director compensation, disclosure is currently stipulated in the Capital Market Act, but in addition, the introduction of Say on Pay is being considered. There is also an argument that even if this system is introduced as a recommendation, it will have the effect of controlling excessive compensation for directors. Before discussing this, what should be reviewed in advance is that the Supreme Court has currently set a limit in relation to the interpretation of Article 388 of the Commercial Act, allowing the general meeting of shareholders to determine the compensation for directors and the board of directors to make specific compensation decisions. This precedent should be considered for change.