韓國과 中國의 株式會社法上 支配構造에 관한 比較硏究
(A) Comparative Study of the Management Structure in Korean and Chinese Stock Corporation Law
한국 중국 주식회사법 지배구조;
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The present company law of China was established in 1993 with the introduction of the system of the market economy and this law has been enforced for about 10 years. In fact, the important role of this law cannot be disregarded in the process of settling the current company system and establishing the order in the market economy. However, when this law was established many problems were not solved by social limitation, The time when it was established was just a turning point that the market system of China was changed from the system of the planned economy to the system of the market economy in socialism so that many factors of the planned economy influenced on the contents of company law. Futhermore, after being enforced, this law was not corrected enough. Thus, when comparing the Chinese company law with international company law that must be suitable to rapid development and remarkable change of economy in China, it does not catch up with international flow of company law. This resulted in producing the suggestions of company law's correction by many Chinese researchers and so company law was already tried to corrected in the National People Representative Conference. Therefore, I tried to compare the present Korean company law with the present Chinese company law and to study the relation between them. To develope the market economy and finish correcting the economy system, corporation system should be established to the some extent and based on this system the stock market should be activated. Especially, after joining WTO, Chinese economy was being brought into relief as a important part of international economy and being needed to be a cooperative support with advanced economy system of each country. Thus, to activate corporation in China become essential and is very important in developing the world economy. To do so, it is necessary to renovate company's ruling structure of corporation. Thus, this paper aims at comparing and studying company's ruling structure in Chinese company's law with one in Korean company's law. The results are as follows. In first chapter, the purpose, the studying range and researching method of this paper are introduced. In second chapter, the legislative history of Chinese company's law is described. In third chapter, I examine the contents including the meaning of general meeting of stockholders, their right, their voting right, convocation of general meeting of stockholders, decision and the right of minor stockholders, which is presented nowadays, and at the same time several aspects of correction about democratic system in the general meeting of stockholders. In fourth chapter, I look into relationship between director, the chief director, Company Superintendent, General Accounting Director, the board of directors and General Accounting Director and the possibility of adapting committee system of the board of directors into Chinese company's law. In fifth chapter I study the correcting program for the audit system of Chinese company's law by comparing Chinese audit association, an audit institute, according to Chinese company's law and Korean audit system and newly adapted system of committee of inspection. Finally, I try legislatively to consider the correcting direction about company's ruling structure written in Chinese company's law based on the results of comparison and studying each chapter. According to the results from comparison about Chinese and Korean company's ruling structure in company's law, the following conclusion is obtained. Chinese company's law has a legislative form focused on traditional heavy stockholders because it does not escape from Chinese traditional planned economy system when Chinese company's law was made. Thus, this law caused many problems and does not enough for establishing modern company system and is sometimes an obstacle to it because of some regulations. First, to think much of the right of stockholder is very important in several advanced country's company ruling structure. However, in Chinese company's law, currently the right of minor stockholder is insufficient under influence of legislation centered on "heavy stockholder". Thus, the system related to protection of minor stockholder is needed to correct in order to guarantee their profits. Second, now corporation has already adapted "system centered on the board of directors". It means this inclination is the world trend and in the advanced country's company's law director's obligation and responsibility are being strengthened. Thus, in case of Chinese company's law, the managing system of the board of directors should be established and their right should be restricted not to be expanded to catch up with the international trend. To reach this goal, the system of the board of the directors outside corporation is needed to be introduced. Third, today another characteristics is expansion of the range of power of management group in company. The right of General Accounting Director is being expanded so that it is a direct threat to the board of directors and Company Superintendent. However, according to the example of the advanced country's experience, General Accounting Director should be under control and direction of the board of the directors. In fact, General Accounting Director should be agency executing the managing works by reducing their right and by supporting the board of directors. To do so, their right of management should belong to the right of directors. Fourth, the auditor's direction and controlling ability are not recognized in reality and Committee of inspection is inclined to fall into "accessaries" of corporation like a puppet. To execute committee of inspection's ability of direction rightly, audit system should be corrected. In China, sound condition of the market economy for developing corporation is not arranged yet and also modern business condition for enterprises that had been developed for a few centuries is not formed until now. So it is not easy to construct modern system of company and change company's ruling system of the traditional planned economy into modern company's ruling system. Although this process will be going on, it will take a long time to complete. To complete the market economy system as well as to renovate economy system in China will be an important factor in this process.