금융회사지배구조법상 법률적 주요 쟁점사항

Abstract

Since August 1. 2016 the Financial Corporate Governance Act, which integrally governs the governance structure of various financial sector companies, has been being implemented. The Act contains unified and strengthened regulatory frameworks for different financial companies to reflect the trend of enhancing financial supervision after the global financial crisis. The regulation of the Financial Corporate Governance Act which is designed to regulate the sector of the banking, securities, insurance, etc. in the framework of one governance structure can be understood in terms of strengthening the regulation but without any input of the characteristics of the financial institutions. It is not desirable to pursue monolithic regulatory domains. In the case of banks, it is very meaningful to pursue the publicness and soundness of financial institutions because the stability of the financial system is very important. Insurance and securities, on the other hand, maintain financial soundness relatively rather than publicity, but they have important management goals for profitability. Since the securities industry maintains a rigorous separation management system of customer assets and proprietary assets, the impact of insolvency of one company on the overall economy is limited. Insurance has a characteristic that systemic risk is not significantly large because debt to customers is a long-term liability and the investment of relatively large amount weighs on the liquidity assets. It is a problem to overlook the characteristics of each of these financial institutions and to legislate the framework of governance in a single unified law. This paper deals with major issues in the Financial Corporate Governance Act such as the scope of Specially Related Person, the Separation Appointment of Audit Committee, 3% Limitation of Voting Rights and Major Shareholders Eligibilities Screening, etc. In order to correspond to the reality it is necessary to reduce the range of Specially Related Person that is ambiguous but also does not reflect the reality. In relation to the Separation Appointment of Audit Committee, the starting point of the discussion is to recognize that the audit committee is a member of the committee, which is one of the subsidiary organizations of the board of directors. 3% Limitation of Voting Rights should take into account that it may infringe fundamental rights such as constitutionally authorized shareholders’ property right. Although Major Shareholder Eligibility Screening can be considered as the objective of enhancing management transparency, the introduction of the Act may have a negative impact on the active investment activities of insurance company shareholders. Moreover, the passive attitude of shareholders can emerge as an obstacle to corporate creative management.