2025년 개정상법상 이사 및 감사위원의 선출 방법과 해석 방안 - 자산총액 2조 원 이상 상장회사에 대한 집중투표 및 감사위원 분리 선출 논의를 중심으로 -

The 2025 amendment to the Korean Commercial Act represents a watershed moment in redefining the direction of corporate governance in Korea. Considering the longstanding reality in which controlling shareholders have exercised dominant influence over board composition under the principles of one-share-one-vote and majority voting, the introduction of mandatory cumulative voting for listed companies with total assets of KRW 2 trillion or more and the expansion of the scope of separately elected audit committee members to at least two seats constitute not merely procedural changes but a potential turning point toward substantive improvement in corporate governance. However, institutional reform does not automatically guarantee successful outcomes. Practical controversies are expected to arise in the field rgarding issues such as the order of voting when board proposals and shareholder proposals coexist, whether the number of directors to be elected maybe listed as a prior resolution, and whether cumulative voting can be excluded when audit committee members are separately elected. To address these challenges, the guiding principles must remain the proportional protection of minority shareholdersʼ rights and the strengthening of the independence of audit and board oversight mechanisms. The interpretation and application of the amended Act should follow three standards. First, an interpretation faithful to legislative intent is required. The core purpose of cumulative voting and the separate election of audit commitee members is to substantively empower minority shareholders and secure the independence of the board and audit bodies in order to fairly protect the interests of all shareholders. Therefore, interpretation should not be confined to the literal text but grounded in the original purpose ofthe制度. For example, attempts by eligible companies to weaken the effect of cumulative voting by separating director categories into separate agenda items, or to preclude the application of shareholder-proposed cumulative voting by preemptively filling director positions through a board-proposed simple majority voting process, must be deemed inconsistent with legislative intent and thus impermissible. Second, the mandatory nature of Articles 542-7(3) and 542-12(2) must be clearly recognized. Corporate law carries both private and public dimensions aimed at establishing a stable organizational framework involving multiple stakeholders, and thus many provisions operate as mandatory rules. Provisions designed to protect minority shareholders and ensure the independence of monitoring and oversight functions are understood as mandatory rules. Accordingly, Articles 542-7(3) and 542-12(2), which require cumulative voting and expand the scope of separate election of audit committee members, must be interpreted as mandatory provisions that cannot be circumvented or avoided. Third, an interpretation that harmonizes mandatory rules with private autonomy is necessary. Even mandatory rules do not entirely exclude autonomy of corporate bylaws or shareholder agreements, provided such autonomy does not undermine the essential purpose of the制度. For instance, the specific procedural operation of cumulative voting or the screening and nomination process for audit committee candidates may be tailored to each companyʼs circumstances. However, operational practices that nominally comply with legal requirements while practically nullifying the effects of cumulative voting or separate election and thereby hollowing out minority shareholder rights must not be permitted.