「금융회사의 지배구조에 관한 법률」 시행상 문제점에 관한 소고

초록

The Act on Corporate Governance of Financial Companies(the “Act”) has become effective beginning August 1, 2016. Focusing on the special characteristics of financial companies, the Act provides for sets of provisions regarding corporate governance of financial companies that deviate from those rules applicable to business companies under the Commercial Code. Prior to the introduction of the Act, there had been several sets of legislations each of which applies to financial companies of a specific financial industry. The Act has unified the frame for the corporate governance of financial companies of most of the financial industries. Rather than re-examining the validity of the corporate governance frame provided by the Act, this article examines the issues involving the enforcement of the Act and suggests feasible solutions and legislative proposals. In Part Ⅱ, this article examines nature and scope of the fiduciary duty of the directors of financial companies considering the special characteristics of financial companies and, assuming through discussion and research among academics and other interested parties, suggests incorporation of the stakeholder view into the Act. In Part Ⅲ, the author focuses on the issues surrounding the financial groups consisting of financial holding companies and their subsidiaries. First she analyzes the roles and responsibilities of the directors of a financial holding company and those of its subsidiaries and emphasizes the need for provisions responding to the conflict of interests between the financial holding company and its subsidiaries. Especially she criticizes the legitimacy and effectiveness of the provision that exempts the wholly-owned subsidiaries of a financial holding company from the regular corporate governance frame. In Part Ⅳ, the author goes through various problems that might arise when enforcing provisions that apply to each organ of a financial company, including the issues regarding the qualifications of the officers and independent directors, the power of the board of directors, the scope and function of the executive officer system, the operating rule of the recommendation committee, the working mechanism for the election and dismissal of the directors/members that would consist of the audit committee, and the status of the mandatory rule requiring a compliance officer(s) under the Act comparing it to the similar rule under the Commercial Code. In Part Ⅴ, while appreciating the achievements made by the Act, the author concludes that the Acts needs more attention to enhance the corporate governance of the financial companies and, for future work, leaves in-depth study not only on the issues referred to in this article but also on the issues that are not discussed here including the provisions regarding the qualifications of controlling shareholders of financial companies and the issues on the conflict of interests between and among a financial company and its affiliates.

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