[Aftermath of the Commercial Act Amendment] Expansion of loyalty obligations for directors, remaining tasks amid expectations of shareholder protection
Let's look at the impact of the Commercial Act amendment on corporate management.. As the Commercial Act Amendment Bill, which expands the scope of directors' loyalty obligations from companies to shareholders, has passed the National Assembly, voices of both welcome and concern are emerging in the legal community.. There are expectations that a legal mechanism has been established to protect shareholders' interests., There is also an opinion that if directors are judged to have violated their duties, lawsuits demanding liability may increase rapidly.. Accordingly, the company's decision-making process is strengthened and made objective., It is pointed out that countermeasures, such as documentation, should be prepared..15According to the Japanese legal community, this month 3One of the key points of the commercial law amendment bill passed on the382condolences3(Director’s Fiduciary Duty) It's a revision. Until now 'Directors must faithfully perform their duties for the company in accordance with the laws and provisions of the Articles of Incorporation.'Although it was only stipulated that, The amendment requires directors to have a fiduciary duty not only to the company but also to shareholders.. also 'Directors must protect the interests of all shareholders when performing their duties., The interests of all shareholders must be treated fairly.'A new provision was also added:.In light of this, the legal world is seeing directors become more cautious in their decision-making., There are positive evaluations that it will have the effect of increasing shareholder and corporate value.. Previously, the company's interests were the top priority., In the future, the board of directors will have an obligation to deal fairly with shareholders' interests..In particular, analysis suggests that it is meaningful in that it clarifies the duties and responsibilities of directors.. Lim Dong-han, an attorney at Dongin Law Firm, "Discussed in existing precedents 'Director’s duty of loyalty under commercial law'was mainly interpreted with a focus on the company., Accordingly, criticism has continued to be raised that the interests of general shareholders may be infringed upon in situations where there is a conflict between the interests of the controlling shareholder and the company."as "As shareholders are designated as the subject of directors' fiduciary duties, directors 'all shareholders'has a legal obligation to protect the interests of and treat them fairly."explained.Seok-Hyeon Yoo, an attorney at Mission Law Firm, "It's not just about adding a few words to the law., This clearly declares the direction of commercial law regarding the duties of directors, which may result in shaking up the entire foundation of directors' company management practices."as "Changes will be made to further strengthen the protection of shareholder rights and improve the transparency of corporate governance."I pointed out that.Byun Seung-gyu, an attorney at Seum Law Firm, "It is expected that a tendency will be formed to not disregard the interests of not only major shareholders but also minority shareholders."said. Environment, Society, Governance(ESG) There were also observations that it would have a positive impact on management.. law firm(finite) Lin's lawyer Kim Ji-ho said: "The company has an institutional mechanism to fulfill its duty of loyalty., For example, the Director Recommendation Committee to strengthen the independence and transparency of the board of directors., It is highly likely that a director remuneration committee will be established."as "Corporate governance can be improved, To protect shareholder interests in the long term ESG There is room for more effort in management as well."He said. 'decisions for shareholders' How do you judge…There is a possibility of a surge in lawsuits 'total shareholder profit'Ina 'Fair treatment of the interests of all shareholders' It is pointed out that it may not be easy for management to judge that the decision was made for shareholders because the content of the amendment is abstract.. Lee Young-joo, lawyer at One Law Firm, "For example, the division of property, which is a major problem,, The spun off subsidiary is an independent corporation, so its growth potential can be recognized at a glance and it has a structure that is good for investment while focusing on its core capabilities., Minority shareholders of the parent company will no longer be able to exercise influence over the subsidiary, and the value of the shares they hold will decline due to the separation of the parent company's core business."as "(This decision) Is it a management decision for the company's sustainable growth?, It may be difficult to determine whether the choice is for a specific person, such as a major shareholder."pointed out. When a director's decision is judged to conflict with the interests of some shareholders or violate the duty to protect shareholders' interests, lawsuits demanding legal liability may increase rapidly.. In criminal terms, there is a possibility that the scope of application for breach of trust will be expanded..Attorney Kim "Previously, directors had to do with their relationships with individual shareholders. 'person who handles affairs'The attitude of the precedent was that it does not have the status of, With this amendment, directors may become shareholders' affairs handlers, so violations of their fiduciary duties may result in shareholders' losses.(Damage to stock value)If this leads to a breach of trust, the likelihood of being recognized as a breach of trust has increased."said. The problem is that as the possibility of directors becoming embroiled in lawsuits increases, active decision-making may become difficult.. Shin Jong-su, an attorney at Daeryun Law Firm, "It is pointed out that the possibility of ex post facto accountability increases in directors' decision-making, which may lead to passive management."explained. Attorney Byun also "There is a risk that problems may arise where management puts the director's own avoidance of responsibility ahead of the company's interests."He emphasized. It is also expected that minority shareholders may claim excessive rights.. Attorney Byun "There is a possibility that the management rights of a company with a small majority shareholder's stake may become unstable or spark a dispute., Exceptionally, there is some concern that if some minority shareholders make excessive demands, it may be detrimental to the company and all shareholders."said. Attorney Yoo "Since the provisions of the Commercial Act have no choice but to be interpreted abstractly until the standards for judgment are established,, In particular, controversy over company operation practices will continue."I predicted. There is a need to document the decision-making process and establish an internal audit system. Accordingly, companies need to prepare response measures such as reorganizing the internal control system and continuing active communication with shareholders.. Prove that the director's decision was for the benefit of shareholders, This is because the management decision process must be shown objectively and transparently.. Lawyer Shin "Management collects sufficient information when making decisions, review of alternatives, The legitimacy of responsible management must be secured by documenting procedures such as review of conflicts of interest between management and shareholders."advised.This lawyer "Strengthening shareholder disclosure and background for discussion during board resolutions, You must clearly prepare the basis for your judgment, etc."He said "When dealing with management or major shareholders, it is necessary to secure procedural transparency, such as by applying the most conservative standards and receiving objective external review."explained.You should not miss out on maintaining your audit system.. Attorney Yoo "An internal audit system must be established in relation to all matters where interests between shareholders may conflict."I pointed out.Attorney Lim "It is desirable to utilize the opinions of external experts"as "Corporate briefing session(IR) Efforts are also needed to strengthen functions and provide sufficient opportunities for minority shareholders to express their opinions at general shareholders' meetings."He emphasized.In addition, signing up for executive liability insurance was also suggested as a countermeasure.. Attorney Kim "Subscribing to executive liability insurance to prepare for claims for damages from minority shareholders can also be a kind of safety measure."as "However, in this case, the grounds for exemption are not overly broad., You must check whether there are any special terms and conditions that may allow shareholder-filed lawsuits to be included in compensation."He said.It is also important to accumulate practical cases that can be referenced.. Attorney Byun "In order to establish the specific meaning and scope of a director's duty of loyalty to shareholders, future practice and accumulation of precedents are necessary."He said. Reporter Park Seon-woo(closely@bloter.net) [View full article]
[Aftermath of the Commercial Act Amendment] Expansion of loyalty obligations for directors, remaining tasks amid expectations of shareholder protection (Go here)