기업집단과 기관투자자의 역할

초록

The Korean Commercial Act assumes that each corporation is a separate entity with a legal personality. Directors’ duty owed to a corporation mandates the directors to increase the interest of the corporation itself. In reality, however, many corporations are integrated into a group structure, which raises various challenges to the traditional corporate law doctrines. For example, conflict of interests between controlling and non-controlling shareholders becomes more serious in the context of corporate groups. Institutional investors are in a unique position to exercise influence over corporations and to hold them accountable for good governance. Given the typically significant stake they hold, institutional investors have the ability to demand meetings with the senior management of corporations, challenge them on issues of concern, discuss strategies for achieving the corporations’ goals and objectives and be the leading voice of shareholders in demanding corrective action when wrongdoing occurs. Thus institutional investors have a critical and proactive role to play in the corporate governance. They have better access to information and possess the resources to build the necessary monitoring capabilities. This Article examines the main legal tools available to prevent controlling shareholders from diverting value from the corporation through related party transactions, and the role of institutional investors to regulate the transfer of wealth. Part II surveys the character of ownership engagement by institutional investors in the context of the most common legal tools to regulate related party transactions in the corporate group structure: procedural safeguards (board approval, independent director, and shareholder approval), disclosure, and ex post, standard-based review. Based on the discussion in Part II, Part III makes some recommendations for strengthening the role of institutional investors to regulate related party transactions. Recognizing that there are large differences in ownership engagement between different categories of institutional investors, this Article suggests that the Korean version of a stewardship code should be introduced. This Article especially proposes that the adoption of the code should not be a choice but a duty to all the institutional investors in order to obtain the socially optimal level of disclosure.

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