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Comparison of German and Japanese company laws - Focusing on regulations related to board composition -

  • Legal Theory & Practice Review
  • Abbr : LTPR
  • 2024, 12(2), pp.359-388
  • Publisher : The Korea Society for Legal Theory and Practice Inc.
  • Research Area : Social Science > Law
  • Received : May 1, 2024
  • Accepted : May 22, 2024
  • Published : May 31, 2024

Ji Gwangwoon 1

1군산대학교

Accredited

ABSTRACT

The board of directors is a necessary permanent organ of a stock company, consisting of all directors who have the authority to make decisions regarding the execution of the company's business and to supervise the execution of duties by the directors. The Korean Commercial Law sets out various regulations regarding the composition and operation of a company's board of directors. Recently, new regulations such as qualification limits and term limits for outside directors have been added in the revision of the Companies Act Enforcement Ordinance. However, as a result of detailed provisions regarding restrictions on the qualifications of outside directors in the Commercial Code, which is the Hard Law, Korea has more restrictive discipline than other countries in terms of the composition and operation of the board of directors. Taking this point into consideration, this study examines the German and Japanese board systems with related regulations and precedents, with the aim of obtaining the necessary advise for considering the ductility of the expertise and qualification requirements of outside directors. We examined the following from a comparative legal perspective. There is an essential difference between Germany's dual board system and the unified board systems of Korea and Japan. Therefore, it is unreasonable to directly compare Germany's board structure with Japan's. However, the qualification requirements and independence of outside directors of German audit boards may also have implications for the independence of outside directors in South Korea. In other words, the qualification requirements and term of office for outside directors are not strictly regulated as in South Korea's regulations for outside directors. Furthermore, the independence of outside directors is ensured by requiring thorough supervision of directors in charge of business execution. In Japan, on the other hand, there are three control structures available for listed companies and large corporations. The company will be able to select and operate such a form of control structure. In the case of a company with an audit committee, a company with an audit and supervisory committee, and a company with a nominating committee, etc., a company must have three or more outside directors. Although there are regular legal regulations regarding the number of outside directors, the CG Code provides detailed regulations regarding qualifications for outside directors. Even in the case of South Korea, it is necessary to consider ways to regulate the expertise and qualification requirements of outside directors through ductile norms, rather than regulating them by regular law. In Korea as well, it needs to be considered that a plan to set limits on the number of outside directors in terms of their expertise and qualifications, as in the case of Japan, and to regulate the qualifications of outside directors through soft law, rather than by hard law. In addition, it is necessary to design regulations that ensure the independence of outside directors by relaxing rather than tightening regulations regarding the qualification requirements and term of outside directors.

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