Directors' remuneration under mandatory Article 388 of the Commercial Act

1. 01Question

   Is Article 388 of the Commercial Act a mandatory provision, so that a director cannot exercise a remuneration claim without a shareholders' resolution where the articles provide that the general meeting fixes it, and may the articles or the general meeting delegate the remuneration of directors to the board or to the representative director?

2. 02Holding

   Article 388 is a mandatory provision enacted to prevent a director from pursuing his own interest in his remuneration and to protect the company, its shareholders and its creditors. Where the articles provide that the general meeting resolves on directors' remuneration, the director may not exercise a claim unless there is evidence of a shareholders' resolution on the amount, method and time of payment. The articles or the general meeting may fix only the total or the ceiling of officers' remuneration and delegate the specific details to the board, but a blanket delegation of directors' remuneration to the board is not allowed, and it is likewise not allowed for the articles to provide that the representative director decides individual allocations or for the general meeting to delegate that matter to him directly.

   Summary of the holding, verbatim

   이는 이사가 자신의 보수와 관련하여 개인적 이익을 도모하는 폐해를 방지하여 회사와 주주 및 회사채권자의 이익을 보호하기 위한 강행규정이다. 따라서 정관에서 이사의 보수에 관하여 주주총회의 결의로 정한다고 규정한 경우 그 금액·지급방법·지급시기 등에 관한 주주총회의 결의가 있었음을 인정할 증거가 없는 한 이사는 보수청구권을 행사할 수 없다.

   Unofficial English translation

   This is a mandatory provision intended to prevent the abuse of directors pursuing personal interests in connection with their own remuneration and to protect the interests of the company, its shareholders, and its creditors. Accordingly, where the articles of incorporation provide that the remuneration of directors shall be determined by a resolution of the general meeting of shareholders, unless there is evidence acknowledging that a resolution of the general meeting of shareholders was adopted with respect to the amount, method of payment, timing of payment, and other matters, a director cannot exercise a claim for remuneration.

3. 03Disposition

   Dismissed Stated in the decision

   상고를 기각한다. 상고비용은 원고가 부담한다.

   Unofficial English translation

   The appeal is dismissed. The costs of the final appeal shall be borne by the plaintiff.

4. 04Form of the test

   Elements stated Stated in the decision

   정관 또는 주주총회에서 임원의 보수 총액 내지 한도액만을 정하고 개별 이사에 대한 지급액 등 구체적인 사항을 이사회에 위임하는 것은 가능하지만, 이사의 보수에 관한 사항을 이사회에 포괄적으로 위임하는 것은 허용되지 아니하고

   Unofficial English translation

   it is possible for the articles of incorporation or the general meeting of shareholders to determine only the total amount or limit of the remuneration of officers and to delegate specific matters, such as the amounts payable to individual directors, to the board of directors, but comprehensive delegation of matters concerning the remuneration of directors to the board of directors is not permitted, and

5. 05Factors

   • 이사가 자신의 보수와 관련하여 개인적 이익을 도모하는 폐해를 방지하여 회사와 주주 및 회사채권자의 이익을 보호하기 위한 강행규정이다
   • 그 금액·지급방법·지급시기 등에 관한 주주총회의 결의가 있었음을 인정할 증거가 없는 한 이사는 보수청구권을 행사할 수 없다
   • 임원의 보수 총액 내지 한도액만을 정하고 개별 이사에 대한 지급액 등 구체적인 사항을 이사회에 위임하는 것은 가능하지만
   • 대표이사가 자신의 보수를 스스로 결정한다면 이와 관련하여 개인적 이익을 도모할 위험이 있어 상법 제388조의 입법 취지에 반할 뿐만 아니라
   • 이사회 구성원인 이사들의 보수를 대표이사 단독으로 결정할 수 있다면 대표이사의 업무집행에 대한 이사회의 감독이 효과적으로 이루어질 것을 기대하기 어렵기 때문이다

   Unofficial English translation

   • it is a mandatory provision intended to prevent the abuse of directors pursuing personal interests in connection with their own remuneration and to protect the interests of the company, its shareholders, and its creditors

   • unless there is evidence acknowledging that a resolution of the general meeting of shareholders was adopted with respect to the amount, method of payment, timing of payment, and other matters, a director cannot exercise a claim for remuneration

   • it is possible to determine only the total amount or limit of the remuneration of officers and to delegate specific matters, such as the amounts payable to individual directors, to the board of directors, but

   • if the representative director were to determine his or her own remuneration, there would be a risk of pursuing personal interests in connection therewith, which would not only run counter to the legislative purpose of Article 388 of the Commercial Act but also

   • for if the representative director alone could determine the remuneration of the directors who are members of the board of directors, it would be difficult to expect that the board of directors' supervision over the representative director's execution of duties would be effectively carried out

6. 06Relation to precedent

   Follows earlier decisions Stated in the decision

   대법원 2014. 5. 29. 선고 2012다98720 판결, 대법원 2020. 4. 9. 선고 2018다290436 판결 등 참조

   Unofficial English translation

   See, e.g., Supreme Court Decision 2012Da98720 decided May 29, 2014; Supreme Court Decision 2018Da290436 decided April 9, 2020

   Decisions referred to

   [1] 대법원 2014. 5. 29. 선고 2012다98720 판결, 대법원 2020. 4. 9. 선고 2018다290436 판결(공2020상, 906) / [2] 대법원 2020. 6. 4. 선고 2016다241515, 241522 판결(공2020하, 1313)

7. 07Burden of proof

   Not addressed Not in the decision

8. 08Open question and revisit condition

   If a shareholders' meeting later resolves to approve remuneration that a director has already received without any resolution, can that director still claim the unpaid balance?

   A later decision on whether the board may sub-delegate the fixing of individual directors' remuneration to the representative director would change how the delegation rule is read. So would an amendment to Article 388 of the Commercial Act, or a record showing a shareholders' resolution on the amount, method and time of the plaintiff's pay, or a resolution ratifying what was paid.

Read 2026-10-24 · Cross-read 2026-10-24. All quotes matched against the official text. The Chinese-character placeholders the court used for anonymised parties are given in their Korean readings, and parenthetical Chinese-character glosses are omitted.

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