2016년 12월 15일 목요일

As for the inspection, it is a committee setting company

As for the inspection, it is a committee setting company

The thing which committees such as the inspection to be an engine design, and to be comprised of higher than three directors including the outside director of the majority in substitution for supervisory board of the company where inspection was introduced into newly (2015) with the committee setting company (かんさとういいんかいせっちがいしゃ) in 2014 of the enforcement on May 1 in 2015 by company law revision carry organized inspection of the officiation of the director on. Supervisory board setting company and nomination Committee are spreading out as the third company form on the middle character of the setting company rapidly between listed companies.

  • I list only the number of the articles in the following about company law.

Table of contents

Process of the introduction

A setting company (committee setting company) system was introduced into the nomination committees which took a system of the United States of America into account (2003) in 2003 by the law (company law) about the exception of the commercial law about the inspection of the company of the establishment. I planned the separation of the decision making that was quicker than conventional supervisory board setting company and duties execution function (executive) and the supervision function (the board of directors). However, according to this engine design, each of three Committee must consist of the outside director of the majority. The legal system top is to let you hold an additional post of all three Committee, and the business top is the system that the engine constitution that the considerable number of outside a company building officers are required is easy to grow although it is established if I secure the number of outside a company building officers at least two. I was apt to rack my brains about the security of the outside a company building officer under the manager market which became stiff of Japan, and the company where nomination committees shifted to the setting company even if higher than passed from introduction for ten years remained in only 68 among other things [1]. In addition, big reasons to disturb the spread include that a feeling of resistance to the decision right of personnel affairs and the reward being held by outside a company building officer is strong [2].

Over this three Committee, there was always the request to enable a more flexible engine design from the economic world [3], and company law was revised in (2014) in 2014 by a point of view that promoted the utilization of the outside director, and strengthened corporate governance, and a committee setting company system was introduced into inspection [4]. For this division with the system, as for the name conventional committee setting company, nomination Committee was changed by the setting company.

Legal requirements

Committees such as inspection are put for the inspection in the board of directors in the committee setting company. On the other hand, I cannot install an inspector (supervisory board) (Article 327 Clause 4). In addition, setting of the accounts inspector is always necessary (Article 327 Clause 5).

Board of directors

Inspection must set up committee meetings such as inspection in the board of directors in the committee setting company. The committees such as inspection consist of the director who is committees such as more than 3 inspection, and the majority must be an outside director (Article 331 Clause 6).

Inspection resembles the normal board of directors in the authority of the board of directors in the committee setting company, but can entrust a director with decision of the important duties execution except a matter to set of 13 fifth 項各号 of Article 399 when the majority of the director is an outside director. As for this, nomination Committee made much of the decision-making quick nature similar to the setting company. Even if an outside director does not reach the majority, I can show an equal effect by board of directors resolution if I set it of a certification of incorporation (13 Clause 6 of Article 399). When I do not entrust a director with decision of the important duties execution, the system of the decision by the special director exists like supervisory board setting company (Article 373).

In the term of office of the director, it is except the director who is committees such as inspection to mention later in fiscal years expired within one year after election when until time of the end of the ordinary general meeting of stockholders about the last thing (Article 332 Clause 3). Nomination Committee resembles the setting company in this point.

Inspection a committee

Committees such as each inspection convene the committee meetings such as inspection (8 of Article 399). The notice of call rises by (when I establish the period less than this in articles of association the period) for one week, but the notice of call becomes needless by the agreements of all the committees such as inspection. I can demand attendance from a director and accounts advisor as needed (9 of Article 399).

The majority of the committee such as the inspection that a decision can increase attends and perform the resolution with the majority (10 of Article 399). The committees such as inspection to have a special interest for the resolution concerned resemble the board of directors in a point (10 Clause 2 of Article 399) that cannot increase in a decision and the point where there is a quorum (but they are impossible of weighting, and the quorum is different from the board of directors). In addition, a rule like the supervisory board is put. The point that I cannot weight considers resolution requirements, and the point where there is not a resolution system is similar to supervisory board.

The committees (committees such as inspection) such as inspection perform duties to advocate next (2 Clause 3 of Article 399).

  • The making of inspection of the officiation of the director, accounts advisor and the inspection report.
    • Duties and an investigation into situation of the property (3 of Article 399).
    • The report (4 of Article 399) to the board of directors of the director injustice.
    • The report (5 of Article 399) to the general meeting of stockholders of the defect of the general meeting of stockholders presentation bill.
  • The election of the accounts inspector who submits it to a general meeting of stockholders and dismissal and the decision of the contents of the bill about what I do not reappoint accounts inspector to.
  • The decision of the opinion of the committee such as the inspection about the following matters about the director except the committee such as inspection.
    • An opinion about the director election in the general meeting of stockholders. "Committees such as the inspection that committees such as inspection choose" have the opinion statement right about election, dismissal, the resignation about other director about the director who is committees such as inspection each "committees such as each inspection" (2 of Article 342). An inspector and resemblance.
    • The opinion about the rewards of the director in the general meeting of stockholders. "Committees such as the inspection that committees such as inspection choose" have the opinion statement right about election, dismissal, the resignation about other director about the director who is committees such as inspection each "committees such as each inspection" (Article 361). An inspector and resemblance.

The committees such as inspection have the following authority.

  • The agreement right about the bill about the election of the director who is committees such as inspection to submit to a general meeting of stockholders (2 Clause 1 of Article 344).
  • The right to claim (2 Clause 2 of Article 344) of submitting the bill about the general meeting of stockholders being aimed for election or it of the director who is committees such as inspection to a general meeting of stockholders.
  • The dismissal right of the accounts inspector (Article 340). They must perform the dismissal concerned by the agreements of all the committees such as inspection, and the committees such as the inspection that committees such as inspection chose must report a reason of so and the dismissal to a general meeting of stockholders convened after dismissal first (Article 340 Clause 2 Clause 3 Clause 5).
  • The participation (Article 399) about the rewards of the accounts inspector.
  • Preclearances of the profit reciprocity business (Article 356 Clause 1 2-3) of the director except the committee such as inspection. As for the profit reciprocity business that received the approval concerned, an estimate of the duty default when the damage occurred in the company concerned is removed (Article 423 Clause 4). Inspection is a rule peculiar to a committee setting company.
  • The agreement right to some exemptions of the responsibility of the director by the general meeting of stockholders resolution. "One of a committee such as each inspection" must obtain consent on submitting the bill concerned (Article 425 Clause 3 2).
  • The agreement right to some exemptions of the responsibility of "the director except committees such as inspection" by articles of association. "One of a committee such as each inspection" must obtain consent on obtaining the presentation of the articles of association change bill to a general meeting of stockholders, the presentation of the bill to the board of directors concerned to the director's consent (Article 426 Clause 2, Article 425 Clause 3 2).
  • The agreement right to some exemptions of the responsibility of the director by the responsibility-limited contract. "One of a committee such as each inspection" must obtain consent on submitting the articles of association change bill to a general meeting of stockholders (Article 427 Clause 3, Article 425 Clause 3 2).

The director that is committees such as inspection

The director that inspection is committees such as inspection in the committee setting company is distinguished from other directors systematically. Specifically, both are distinguished in (Article 361) such as rewards to establish in election (Article 329), a cumulative voting system (Article 342), a general meeting of stockholders officer election right kind stocks (Article 108 Clause 1 9) with.

Qualification restrictions
I cannot hold an additional post of the duties execution director, manager and others servant of "the company concerned or the subsidiary", accounts advisor of "the subsidiary concerned" (Article 331 Clause 3).
Election, dismissal
It depends on a general meeting of stockholders. I distinguish inspection from the director except the committee and elect it (Article 329 Clause 2). In addition, the special resolution of the general meeting of stockholders is required like an inspector in dismissal (Article 309 Clause 2 7).
The term of office
Until time of the end of the ordinary general meeting of stockholders about the thing which is last in fiscal years expired within two years after election (Article 332). Of director of the supervisory board setting company and but is similar director except committees such as inspection it may be said that stood on the purpose of the independency like a point, the inspector who cannot shorten again in the term of office of the committee such as inspection (Article 332 Clause 4) for one year as for the term of office.
Authority
  • I can request the repayment (offer of the security) of the debt that bore request ・③ of the repayment of the interest after the expense that I made request ・② expenditure of the payment on delivery of the ,① expense and expenditure day from the company concerned. The company concerned cannot refuse this unless I prove the thing that is not necessary for the officiation of the committee (2 Clause 4 of Article 399).
  • Even if there is fate of the call incarnation of the general meeting of stockholders, "the committees such as the inspection that committees such as inspection choose" can call the board of directors (14 of Article 399).

Inspection the shift to the committee setting company

The committee non-setting company changes the articles of association, and inspection can become the committee setting company (cf. Article 915 Clause 1 Article .911 Clause 3 22). In this case when I put an inspector, supervisory board, you must abolish it (Article 327 Clause 4), and the inspector retires from it by the expiration in the term of office (Article 336 Clause 4 2). In addition, it becomes the accounts inspector setting company when it is in board of directors setting company (Article 327 Clause 1 3) and does not employ accounts inspector when I do not put the board of directors (Article 327 Clause 5). In addition, a conventional director and the accounts advisor retire from it by the expiration in the term of office when inspection becomes the committee setting company (Article 332 Clause 7 1 Article .334 Clause 1). Because the accounts inspector does not retire from it, attention is necessary. In addition, I cannot put a committee in exception Ltd. (maintenance method Article 17 Clause 1).

Because the destined new establishment of the committee setting company is articles of association change, inspection must depend on the special resolution of the general meeting of stockholders (Article 309 Clause 2 11 Article .466).

The entries are as follows (Article 911 Clause 3 22).

  • Inspection being a committee setting company
  • Full name of the directors who is a committee such as inspection and other director
  • Being an outside director about the thing which is an outside director among directors
  • The fate (13 Clause 6 of Article 399) of articles of association about the commission to a director of the decision of the important duties execution is so once

An advantage and fault of the adoption

When I compare it with supervisory board setting company, as for the inspection, the committee setting companies include the following advantages.

  • Because the term of office of the director who is committees such as inspection is two years whereas the term of office of the inspector is four years, more flexible reelection is enabled.
  • Conventionally, outside a company building officer (inspector outsider) who was not able to use a voting right in the board of directors becomes able to use a voting right in the board of directors and contributes to governance reinforcement.
  • About the duties execution is quick; come to be able to make decision.
  • Because it is not forbidden inspector conventional outsider by a sideslip that I assume it the outside director of the committee such as inspection, I can easily in this way meet establishment requirements.
  • There is little number of outside a company building officers two and finishes it on satisfying the demand of the corporate governance cord (later description).
  • The explanation of "the reason why it is not considerable to employ an outside director" in the general meeting of stockholders becomes needless (later description).

On the other hand, I include the following faults, too.

  • I have possibilities having difficulty in security of the outside director. Responsibility demanded than inspector outsider is heavy, and an outside director is because inspector outsider may not consent the sideslip assumption of office.
  • It was expected that a person having technical knowledge specialized in inspection conventionally took inspector outsider, and a lawyer or a certified public accountant were often chosen. Only technical knowledge about the inspection is not necessarily demanded from an outside director, and a person having such a high qualification becomes hard to be chosen.

Criticism

  • There is not an executive in nomination Committee unlike a setting company, and there is not the separation of duties execution function and the supervision function. Conventional supervisory board replaces the committees such as inspection, and it leads to self-inspection that the director who is committees such as inspection uses a voting right in the board of directors. There is the indication that an inspection function decreases than conventional supervisory board setting company [5].
  • Unlike conventional supervisory board setting company, it is brought into question that the setting of the regular inspector is not required and that the committees such as inspection must follow the decision of the committee such as inspection not a single system [6].
  • Engine constitution of three Committee is natural in the United States, and this system avoiding personnel affairs and the participation of the outside a company building officer in reward looks inferior. The case which overseas institutional investors object to for the shift to the committee setting company as for the inspection is founded saying that this system without nomination Committee and reward Committee has a problem in corporate governance [7].
  • Though I promote the introduction of the outside director by a tide of the globalization, I am told that, as a result, Japan's original Galapagos system is completed [8].
  • As previously described, as for the inspection, the handling that is advantageous only to a committee setting company about profit reciprocity business is accomplished. However, this is like a policy, and it is thought that there are not the particularly theoretical grounds [9].

Adoption situation

The companies where inspection shifted to the committee setting company increase rapidly after introduction of May (2015) regardless of an area in 2015. Around 190 companies express a shift early as of July two months later [10]. It is said that I reach around 600 companies (2016) in the end of June in 2016. This is a scale equivalent to approximately 20% of the whole listed company [11].

It is corporate governance guideline (corporate governance cord) of the Tokyo Stock Exchange which the biggest reason why this system spread out rapidly to here applies it (2015) on June 1 in 2015 one month after revised company law was enforced, and was started [12]. "In principle 4-8 there is the following fate by the effective utilization of the independence outside director".

The independent outside director should achieve a role, a duty to contribute to the sustained growth of the company and the improvement of the medium-and-long term corporate value, and the listed company should elect the independence outside director who comprised enough such nature it more than at least two. In addition, I take environment surrounding type of industry, scale, business properties, an engine design, a company into consideration generally, and the listed company which thinks if what I elect independence outside directors more than at least a one-third by a voluntary judgment is necessary should disclose an action policy of that purpose regardless of the above.

Saying that the Tokyo Stock Exchange demands the presentation of "the report about the corporate governance" from the day of the regular general meeting of stockholders to hold by (it is the end of December in many cases) after this guideline operational start first on a day passing in six months and must list the reason when I do not carry out the principle concerned [13]. Furthermore, the revised company law imposed duty to explain the reason why it was not considerable to put in an ordinary general meeting of stockholders on a director when securities report presentation company did not employ an outside director (2 of Article 327); [14]. I called for the corporate governance cord to the last, but it was necessary to take either which explained a reason to install an outside director on one of legal requirements, or not to install for a stockholder. If it is necessary to install at least two inspector outsider conventionally in the supervisory board setting company, and inspection does these with an outside director by a sideslip with the shift to the committee setting company, I can meet a corporate governance cord in a form. As stated above, inspection that there is less number of outside a company building officers than supervisory board setting company and finishes is that a merit is big for a public big company in the committee setting company.

Allied item

Footnote

  1. Opto-の inspection repels a committee shift ^ fund (on March 22, 2016 Orient economy Online)
  2. ^ inspection a summary and the introduction situation (in October, 2015 Kiyokazu auditor) of the committee setting company
  3. As for ^ inspection, it is foundation of the committee setting company and written by problem - Toshiichi Murata (Ritsumeikan University), 2015.
  4. News from ^ Ministry of Justice Vol.47 (in November, 2014 Ministry of Justice minister's secretariat secretariat section public relations department)
  5. What the advantage in the business is by the May enforcement of the ^ "committees system such as inspection" (on January 23, 2015 journal Asahi Judiciary of law and the economy)
  6. Room (on January 30, 2015 Toshiaki Yamaguchi) of ^ business legal affairs
  7. = RMB capital [BW] opposite to the shift to the committee setting company as for the inspection of ^ Shobunsha (on June 10, 2016 current events dot-com news)
  8. The original system that Japanese corporate governance - why now, overseas investor becoming ^ Galapagos are concerned about?
  9. For ^ Yasushi Ito et al. "LEGALQUEST company law third edition" 有斐閣, 2,015 years, it is p214.
  10. "The choice" called the ^ supervisory board setting company (on July 21, 2015 Nikkei Business ONLINE)
  11. In ^ "監査等委設置会社" shift, 600 companies 20% (on April 25, 2016 the Nihon Keizai Shimbun) of the listed company
  12. ^ corporate governance cord (on June 1, 2015 Japan Exchange Group)
  13. The mention point (October, 2015 revision, Japan Exchange Group) of the report about the ^ corporate governance
  14. Attention is necessary for the point that it is the reason why it "is not considerable in outside directors to put" that is required in ^ company law, and is not the reason that "is not necessary to put". That is why, as for the explanation such as "there being two inspector outsider", the reason that "is not equivalency" cannot be enough.

Reference materials

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