이사·감사 선임을 위한 임용계약의 요부 - 대법원 2017. 3. 23. 선고 2016다251215 전원합의체 판결 - = Is the Contract of Appointment as a Director or a Statutory Auditor Necessary? - A Review of a Korean Supreme Court Case -

다국어 초록 (Multilingual Abstract)

Recently, a Korean Supreme Court en banc decision rules that if a director or a statutory auditor is elected at the general meeting of shareholders, he is not required to enter into a separate contract of appointment as a director or a statutory auditor with the representative director of a corporation in order to obtain the status of its director or statutory auditor. That is to say, if there is the resolution of election by the general meeting of shareholders, a director-elect or a statutory auditor-elect will be a director or a statutory auditor when he accepts the status of a director or a statutory auditor. This en banc decision overrules the Supreme Court`s former decisions that grant the representative director of a corporation the power to offer a contract of appointment according to the election at the general meeting of shareholders.
This en banc decision makes sure that the general meeting of shareholders has the supremacy among intra-corporate organs. However, this decision is under some criticism. For example, this decision does not tell appointment from election. Also, this decision distorts the intents of some provisions of the Korean Commercial Code. In addition, this decision reveals a unique bias against the procedure to elect a statutory auditor. Finally, this decision does not pay attention to the possibility of abuse of power by the majority shareholders.