기업지배구조론에 관한 서설적 고찰 (An introduction to the theory of corporate governance)

서지정보

· 발행기관 : 한국기업법학회
· 수록지 정보 : 기업법연구 / 27권 / 4호 / 121 ~ 159페이지
· 저자명 : 서완석

초록

The theory of corporate governance has been highly affected by the study of United States corporate governance. Many scholars observed that most large publicly traded corporations had advanced from concentrated, and often family, ownership to widely dispersed ownership lacking a large shareholder existence in order to raise large amounts of capital. The separation of ownership from control was meant to be beneficial because of the diversification effects of dispersed ownership and the specialization of managerial expertise in running the business. The negative aspect of this separation, however, was the apprehension that managers can not always serve the interests of the dispersed owners who were usually beyond their control.
Corporate law scholars generally argue that the nature of corporate governance concerns differ based on the ownership structure of firms. While for publicly owned firms with diverse ownership the governance concern is primarily about the agency costs of management in relation to shareholders, for firms with controlling shareholders the fundamental concern that needs to be addressed by governance arrangements is the controlling shareholder's opportunism. Additionally, in controlled family-owned entities, various family members often serve in executive management or board positions. Thus, minority shareholders of controlled entities are often concerned with self-dealing transactions and other types of expropriation or extraction of wealth by majority stockholders. But minority shareholders usually have limited power to affect the activities of the controlling stockholder through contesting control, voting rights, or pressuring the board of directors.
Corporate governance convergence theories have traditionally associated themselves with one of two opposing positions, convergence or divergence. The convergence theories contend that due to the competitive forces of economic efficiency there will be a global convergence in corporate governance rules towards the Anglo-American shareholder oriented model. Divergence theories generally argue that local institutions or culture will cause divergence as opposed to convergence; or, alternatively, at least make convergence unlikely. Especially, Scholars constantly argue that the power of “path dependency” creates an obstacle as jurisdictions prepare themselves to converge toward the shareholder-oriented/dispersed ownership model. Even if we assume that market forces urge the predominance of the shareholder-oriented/dispersed ownership model, certain path-dependent forces might serve as strong obstacles in spite of market pressure.
This paper describes that the experience in Korea did not support the traditional convergence theories because the borrowing of foreign law in successful economies tends to be highly piecemeal and selective. Company laws do not necessarily converge to more efficient or otherwise normatively superior points, but are influenced by fads and fashions.
Corporate governance is the problem of agency costs. These costs occur because the separation of ownership from management creates manager incentives that may be different from those of shareholders. In the corporate setting, the most important agency cost is the cost of monitoring agents by the principal. These costs are not imposed merely through direct monitoring. Rather, monitoring costs also include various mechanisms by the principal “to ‘control’ the behavior of the agent through budget restrictions, compensation policies, operating rules, etc.”In Korea, concentration of ownership in public companies are controlled by a single shareholder, and significant corporate wealth in Korea is concentrated among a few families. Thus, it is less likely to have agency cost in those company. Nevertheless, the legal regime of Korean corporate governance mandatorily execute by applying a uniform standard to all listed company.
To conclude, this paper propose that Korean corporate governance system needs to be re-examined on the basis of controlling shareholder's ownership rate and argue that standardized corporate governance is not desirable.

영어초록

The theory of corporate governance has been highly affected by the study of United States corporate governance. Many scholars observed that most large publicly traded corporations had advanced from concentrated, and often family, ownership to widely dispersed ownership lacking a large shareholder existence in order to raise large amounts of capital. The separation of ownership from control was meant to be beneficial because of the diversification effects of dispersed ownership and the specialization of managerial expertise in running the business. The negative aspect of this separation, however, was the apprehension that managers can not always serve the interests of the dispersed owners who were usually beyond their control.
Corporate law scholars generally argue that the nature of corporate governance concerns differ based on the ownership structure of firms. While for publicly owned firms with diverse ownership the governance concern is primarily about the agency costs of management in relation to shareholders, for firms with controlling shareholders the fundamental concern that needs to be addressed by governance arrangements is the controlling shareholder's opportunism. Additionally, in controlled family-owned entities, various family members often serve in executive management or board positions. Thus, minority shareholders of controlled entities are often concerned with self-dealing transactions and other types of expropriation or extraction of wealth by majority stockholders. But minority shareholders usually have limited power to affect the activities of the controlling stockholder through contesting control, voting rights, or pressuring the board of directors.
Corporate governance convergence theories have traditionally associated themselves with one of two opposing positions, convergence or divergence. The convergence theories contend that due to the competitive forces of economic efficiency there will be a global convergence in corporate governance rules towards the Anglo-American shareholder oriented model. Divergence theories generally argue that local institutions or culture will cause divergence as opposed to convergence; or, alternatively, at least make convergence unlikely. Especially, Scholars constantly argue that the power of “path dependency” creates an obstacle as jurisdictions prepare themselves to converge toward the shareholder-oriented/dispersed ownership model. Even if we assume that market forces urge the predominance of the shareholder-oriented/dispersed ownership model, certain path-dependent forces might serve as strong obstacles in spite of market pressure.
This paper describes that the experience in Korea did not support the traditional convergence theories because the borrowing of foreign law in successful economies tends to be highly piecemeal and selective. Company laws do not necessarily converge to more efficient or otherwise normatively superior points, but are influenced by fads and fashions.
Corporate governance is the problem of agency costs. These costs occur because the separation of ownership from management creates manager incentives that may be different from those of shareholders. In the corporate setting, the most important agency cost is the cost of monitoring agents by the principal. These costs are not imposed merely through direct monitoring. Rather, monitoring costs also include various mechanisms by the principal “to ‘control’ the behavior of the agent through budget restrictions, compensation policies, operating rules, etc.”In Korea, concentration of ownership in public companies are controlled by a single shareholder, and significant corporate wealth in Korea is concentrated among a few families. Thus, it is less likely to have agency cost in those company. Nevertheless, the legal regime of Korean corporate governance mandatorily execute by applying a uniform standard to all listed company.
To conclude, this paper propose that Korean corporate governance system needs to be re-examined on the basis of controlling shareholder's ownership rate and argue that standardized corporate governance is not desirable.

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