韓國商法上 株式會社의 監査制度에 관한 考察 - 2009년 5월 28일 및 2011년 4월 14일 개정상법을 중심으로 - (A Study on Auditor System pursuant to the Commercial Code of Korea - based on the Commercial Code amended as of May 28 2009 and April 14, 2011 -)

서지정보

· 발행기관 : 한국기업법학회
· 수록지 정보 : 기업법연구 / 25권 / 3호 / 145 ~ 169페이지
· 저자명 : 서성호, 이재운

초록

The overall corporate governance structure of a joint stock company may be accounted for as designed on distinctive constitutional characteristic of “separation of ownership and management” system. Accordingly, shareholders, despite of being the actual owner of company pursuant to legal system, are not liable for any managerial responsibility upon the premise of not being engaged in management of the company. Directors and representative director as professional management shall be wholly responsible for management in charge of the company on behalf of owners(Commercial Code Article 399, Article 401, Japanese corporate law Article 423조 or 430). However, as it is not proper to preclude the right of shareholders as actual owner of and investor to the company, general meeting of shareholders as one of the bodies of company was institutionalized, hence opened the way for shareholders to participate in management of the company, though indirectly. As shareholders meeting is a collegiate body consisting of shareholders as actual owner of the company, its natural role shall be the control of company's management with highest decision making authority from the designing stage of corporate governance. However, shareholders meeting lacks the basic condition to fulfill its functions smoothly, with its form as the collegiate body institutionalized by convocation.
For this reason, a third body in supplement was necessitated to support shareholders' decision making, by residing in company, monitoring and supervising management, and providing the internal information acquired thereof to shareholders. Auditor system was introduced to meet exactly this purpose. From this viewpoint, auditor system has the meaning as supporting body to activate the shareholders' meeting from early stage of corporate governance design, after all.
Meanwhile in Korea, with currency crisis in 1998 as starting point, there was big changes in corporate governance of joint stock company pursuant to traditional Commercial Code. Especially on auditor system of joint stock company, the amendment of Commercial Code on December 31, 1999 brought in a big change by adopting audit committee system. And further amendments on May 28 2009 and April 14, 2011 made much more sophisticated changes. These changes were difficult to understand even to the academics majoring in the law. Hence this paper not only reviews audit system extensively based on recent enactments, but also tries to point out problems as well as enactment proposal and direction of legal interpretation, after looking at 4 categorized auditor system (optional audit committee, mandatory audit committee, no committee (traditional auditor elected), arbitrary exclusion of auditor system) in detail.

영어초록

The overall corporate governance structure of a joint stock company may be accounted for as designed on distinctive constitutional characteristic of “separation of ownership and management” system. Accordingly, shareholders, despite of being the actual owner of company pursuant to legal system, are not liable for any managerial responsibility upon the premise of not being engaged in management of the company. Directors and representative director as professional management shall be wholly responsible for management in charge of the company on behalf of owners(Commercial Code Article 399, Article 401, Japanese corporate law Article 423조 or 430). However, as it is not proper to preclude the right of shareholders as actual owner of and investor to the company, general meeting of shareholders as one of the bodies of company was institutionalized, hence opened the way for shareholders to participate in management of the company, though indirectly. As shareholders meeting is a collegiate body consisting of shareholders as actual owner of the company, its natural role shall be the control of company's management with highest decision making authority from the designing stage of corporate governance. However, shareholders meeting lacks the basic condition to fulfill its functions smoothly, with its form as the collegiate body institutionalized by convocation.
For this reason, a third body in supplement was necessitated to support shareholders' decision making, by residing in company, monitoring and supervising management, and providing the internal information acquired thereof to shareholders. Auditor system was introduced to meet exactly this purpose. From this viewpoint, auditor system has the meaning as supporting body to activate the shareholders' meeting from early stage of corporate governance design, after all.
Meanwhile in Korea, with currency crisis in 1998 as starting point, there was big changes in corporate governance of joint stock company pursuant to traditional Commercial Code. Especially on auditor system of joint stock company, the amendment of Commercial Code on December 31, 1999 brought in a big change by adopting audit committee system. And further amendments on May 28 2009 and April 14, 2011 made much more sophisticated changes. These changes were difficult to understand even to the academics majoring in the law. Hence this paper not only reviews audit system extensively based on recent enactments, but also tries to point out problems as well as enactment proposal and direction of legal interpretation, after looking at 4 categorized auditor system (optional audit committee, mandatory audit committee, no committee (traditional auditor elected), arbitrary exclusion of auditor system) in detail.

참고자료

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