상법 개정안의 집행임원제도 고찰

A Study on the Executive Officers system in Korea and Japan

The “executive officer” is independent business operating agency that is separated from director and board of directors within its authority. The company may choose their own business executive system between Representative director that has been in a former commercial law and The “executive officer” that is on the revised bill of the commercial law in 2008. Although the absence of the legal basis, The “executive officer” system has been used widely and aroused many legal problems in status, right, responsibility, etc.; even The “executive officer” was treated equivalently with the registered director in the internal company. The traditional organization and the actual condition of board of directors of Japanese companies were very similar with those of Korean companies. Legally, director had the right to operate business and supervise the operation as a member of the board of directors, but the supervising function could not be worked because the board of directors consisted of inside directors who were, in actual fact, divided into the upper and the lower directors. Furthermore, there were lots of obstacles to get a quick decision making and a profound discussion because a number of members of board of directors. In these condition, important business decision making was made by non-registered directors, board of directors just confirmed those decisions. To solve these problems, Japanese companies tried to reduce the number of board of directors, to shorten the term of membership and to induce the “executive officer” to separate their business operating from supervising function. It is proper that the function of board of directors should be separated from business operating from supervising to supervise the “executive officer” in effect. The “executive officer” has the agency authority as an agent, and has the discretionary power to judge a business problem unless board of directors limit his power. The “executive officer” also has a duty of care and a duty to be faithful like a director. In the case of giving a damage to a stockhodler or a company, he should take a liability of reparation. The company may have The “executive officer” in spite of their size in the revised bill of the commercial law in 2008. Each “executive officer” is the organ of his company. The judicial precedent said that the relationship between company and The “executive officer” is legally empolyment contract, even though the most theory has been telling us that the relationship is legally delegation contract. As “executive officer” has the discretionary power and independence of business operation, it is proper that the relationship should be legally delegation contract. The revised bill conclude this relationship is delegation contract. In this point of view, The “executive officer” has the discretionary power to decide the policy of their company, also he has a duty of care and a duty to be faithful. In the revised bill, the company that has The “executive officer” should have the chairman of the board of directors who is assigned by the board of directors unless the articles of incorporation decide about chairman. In my humble point of view, at first, we need the regulation about the prohibition of concurrent office between The “executive officer” and directors; between the representative “executive officer” and the chairman of the board of directors. Second, However the board of directors has the power to decide every business operating policy and the power to supervise each director in the law in force, it should be changed. The “executive officer” should have the power to make a decision about the policy of company. The board of directors should have the power to supervise the company. In other words, the function of decision making and the supervision should be separated. The introduction of the system of “executive officer” may establish the clarity of Corporate Governance positively.