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최완진 한국경영법률학회 2012 經營法律 Vol.22 No.4
The Korean Commercial Code, as amended in April 2011, established a compliance control system applicable to listed companies over a certain size, and requires the appointment of a compliance officer to implement the compliance control system. In response, many companies have argued that there are currently audit functions already in place which overlap with the compliance control and compliance officer systems, and that the implementation of the new systems increases the economic burden on the relevant companies. On the other hand, academics and attorney organization have generally welcomed the new systems, insisting that they will foster corporate compliance and management transparency, which will be beneficial to these companies. Sharp conflicts between the two sides have become a big issue. In my opinion, the compliance control and the compliance officer systems will function to benefit both the relevant companies and their shareholders, because these new systems (i) have distinct functions and roles beyond existing audit systems, (ii) fill gaps commonly existing in the internal controls of companies, and (iii) facilitate the control of management via monitoring and increased transparency. In this thesis, after having reviewed outlines and the pertinent provisions of the compliance control and compliance officer systems introduced by the amended Korean Commercial Code, as well as legislation and the compliance systems in other countries, I will discuss issues and problems associated with the Korean compliance control and compliance officer systems, and also offer recommendations thereon.
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최완진 한국경영법률학회 2008 經營法律 Vol.18 No.2
The double derivative suit has been developed in case law in the U.S.A. in the pursuit of justice. In the U.S.A., this kind of suit is inferred from a single derivative suit and extends its qualification for a plaintiff to a shareholder of its parent corporation. The 2006 revision draft of the Korean Commercial Code(K.C.C.) introduces a double derivative suit which is recognized in common law jurisdiction. The double derivative suit can protect minor shareholders of parent corporation from harmful management of fiduciaries of subsidiary. However the most business circles and corporations in Korea are opposed to introducing this kind of derivative suit in the K.C.C. on the ground that will obviously shrink activities of corporations. But it is very important to recognize that the derivative proceeding of shareholders is an equitable remedy. This means that it is only a extraordinary and exceptional device to help the shareholders. In consequence, it is very difficult and so at the same time meaningless to codify the pre-requisites of this suit. I think the best way to introduce and to develop it is through a case law.
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집행임원제도에 관한 재조명 -2008년 상법개정안을 중심으로-
최완진 한국상사법학회 2010 商事法硏究 Vol.29 No.3
This paper outlines the Executive Committee system in general, the pros and cons of introducing such system, and also discusses the proposed legislative scheme to introduce same as an amendment to the Korean Commercial Code (the “KCC”). Since the IMF crisis, the overriding consensus in Korea has been that the country’s corporate governance structure should be restructured and brought into conformity with the global standards. Such consensus brought about the introduction of the outside director and audit committee requirements and also served as the impetus for introducing the executive committee. On October 21, 2008, the Minister of Justice submitted a proposal to the National Assembly, detailing the legal framework for establishing the Executive Committee system and pertinent requirements. This proposal was submitted together with rules pertaining to setting up a new type of company, no-par stock, diversification of class shares, etc. Some opponents of the proposed amendment have opined that it may be more desirable to allow the companies to decide for themselves whether such position has to exist within in their structure, and, if deemed necessary, to set forth in detail the rights and duties of executive officers in the articles of incorporation, instead of making the executive committee a mandatory requirement. In addition, they have criticized the administration for moving too hastilyon this, and admonished that the adoption of this system together with numerous new provisions related to governance structure (e.g. outside director and audit committee systems) may prove to be too burdensome for businesses as well as the administration. Notwithstanding these criticisms, it appears that the adoption of the Executive Committee system is likely to improve and bring about transparency to corporate governance, because there would a clear division between the management supervision function and the operational function. Moreover, in order to properly establish corporate management responsibilities, it will becritical to delineate legal guidelines that will be applied by the Executive Committee. A proper execution of the Executive Committee system would also prove to be beneficial to the company as well as to its shareholders, as such system would encourage the executive officers’ creativity and revitalize investment in the company. In this regards,this 2008 bill proposed by the Ministry of Justice to amend the KCC-which represented a comprehensive effort to reflect a wide range of suggestions for the revision to the KCC-may be credited as having suggested a desirable direction for moving forward with further improvement in the corporate governance area.
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