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금융감독기관의 감독배상책임에 관한 연구

Legal Aspects of Supervisory Liability

정순섭
한국상사법학회|2013.02|상사법연구 (KOREAN COMMERCIAL LAW ASSOCIATION)|제31권 제4호|pp. 151-231

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참고문헌

키워드

주의의무위법성감독배상책임supervisory liabilityduty of carefinancial supervision금융감독방어적 감독defensive supervision
주제분류법학

초록

Supervisory liability is one of the regulatory tools to hold financial supervisors to account. It refers to the liability of financial supervisors for third party losses caused by the defective performance of their supervisory tasks. There is no cases involving supervisory liability in Korea other than one case on the liability of financial supervisors for their defective examination of registration statement and prospectus. Recently some depositors and other creditors claimed the liability of financial supervisors for their incomplete supervision of failed mutual savings banks. However, there is no comprehensive discussion on the merits of supervisory liability arrangements in Korea. Subjecting financial supervisors to accountability via supervisory liability arrangements has been recognized as reconciling supervisors’ independence with external control system. It seems that we have relevant legal system for a relatively wide supervisory liability. However, excessive requirement of accountability via supervisory liability arrangements can conflict with the elements of efficiency, independence and expertise. In particular, an overemphasis of the substantive accountability on the matters of policies and judgments may cause another problems like defensive supervision or chilling effect. This paper is to examine the policy backgrounds of supervisory liability, to compare the systems and relevant cases in several jurisdictions, and to apply its findings to an assessment of the current legal system in Korea. Finally, this paper recommends the introduction of partial exemption of supervisory liability.

Abstract

Supervisory liability is one of the regulatory tools to hold financial supervisors to account. It refers to the liability of financial supervisors for third party losses caused by the defective performance of their supervisory tasks. There is no cases involving supervisory liability in Korea other than one case on the liability of financial supervisors for their defective examination of registration statement and prospectus. Recently some depositors and other creditors claimed the liability of financial supervisors for their incomplete supervision of failed mutual savings banks. However, there is no comprehensive discussion on the merits of supervisory liability arrangements in Korea. Subjecting financial supervisors to accountability via supervisory liability arrangements has been recognized as reconciling supervisors’ independence with external control system. It seems that we have relevant legal system for a relatively wide supervisory liability. However, excessive requirement of accountability via supervisory liability arrangements can conflict with the elements of efficiency, independence and expertise. In particular, an overemphasis of the substantive accountability on the matters of policies and judgments may cause another problems like defensive supervision or chilling effect. This paper is to examine the policy backgrounds of supervisory liability, to compare the systems and relevant cases in several jurisdictions, and to apply its findings to an assessment of the current legal system in Korea. Finally, this paper recommends the introduction of partial exemption of supervisory liability.

참고문헌 (83)

  1. 금융감독원, "2012년 금융감독제도", ~ (2012)
  2. 김건식, "증권거래법 보정" (2002)
  3. 김건식, "자본시장법 2판" (2010), 두성사
  4. 김동희, "행정법" (2012)
  5. 박균성, "행정법강의" (2012), 박영사
  6. 송종준, "虛僞納入株式 發行 · 流通의 法的 問題點", 증권법연구, 5(1), pp.101~135 (2004), 한국증권법학회
  7. 저축은행 피해, 감독당국 상대로 소송해야, "조선일보", 2012
  8. 이원우, "경제행정규제법" (2010)
  9. 임재연, "자본시장법" (2012)
  10. 정순섭, "금융규제개혁과 금융소비자 보호", 상사판례연구, 23(2), pp.3~67 (2010), 한국상사판례학회
  11. 한국증권법학회, (2009)
  12. 홍정선, "행정법특강" (2012)
  13. Anu Aroa, "The Statutory System of the Bank Supervision and the Failure of BCCI", Journal of Business Law, pp.487~510 (2006)
  14. Financial Sector Superviors Accountability: A European Perspective, "Phoebus Athanassiou", European Central Bank, ~, pp.European Central Bank Legal Working Paper Series No 12 (2011)
  15. Report on the Review of the Australian Prudential Regulation Authority: Who will guard the guardians?, "Australian House of Representatives Standing Committee on Economics Finance and Public Administration", Australian House of Representatives Standing Committee on Economics Finance and Public Administration, ~ (2000)
  16. Australian Royal Commission on HIH, "THE FAILURE OF HIH INSURANCE, Volume I: A corporate collapse and its lessons", ~ (2003)
  17. Australian Royal Commission on HIH, "THE FAILURE OF HIH INSURANCE, Volume II: Reasons, circumstances and responsibilities", ~ (2003)
  18. Australian Royal Commission on HIH, "THE FAILURE OF HIH INSURANCE, Volume III: Reasons, circumstances and responsibilities", ~ (2003)
  19. Prudential supervision and consumer protection for superannuation, banking and financial services, "Australian Senate Select Committee on Superannuation and Financial Services", Australian Senate Select Committee on Superannuation and Financial Services, ~ (2001)
  20. Prudential supervision and consumer protection for superannuation, banking and financial services, "Australian Senate Select Committee on Superannuation and Financial Services", Australian Senate Select Committee on Superannuation and Financial Services, ~ (2001)
  21. Prudential supervision and consumer protection for superannuation, banking and financial services, "Australian Senate Select Committee on Superannuation and Financial Services", Australian Senate Select Committee on Superannuation and Financial Services, ~ (2001)
  22. Gregor Allan, "The HIH Collapse: A Costly Catalyst for Reform", Deakin Law Review, 11, pp.137~159 (2006)
  23. Roger D. Citron, "Lessons from the Damages Decisions Following United Srares v. Winstar Corp", Public Contract Law Journal, 32(1), pp.1~38 (2002)
  24. Joseph Doherty, "Central Bank Independence and Responsibility for Financial Supervision within the ESCB: The Case of Ireland, In Legal Aspects of European System of Central Banks", pp.213~232 (2005), European Central Bank
  25. Mads Andenas, "Liability for Supervisors and Depositors’ Rights – The BCCI and the Bank of England in the House of Lords", Euredia, pp.388~409 (2000)
  26. Mads Andenas, "To Supervise or To Compensate A Comparative Study of State Liability for Negligent Banking Supervision, In Judicial Review in International Perspective", pp.333~360 (2000)
  27. Anona Armstrong, "Loss of Integrity: the True Failure of the Corporate Sector", Journal of Business Systems, Governance and Ethics, 3(3), pp.1~13 (2008)
  28. Robert Baldwin, "Understanding Regulation: Theory, Strategy, and Practice" (2012)
  29. Robert Baldwin, "The Oxford Handbook of Regulation" (2010)
  30. Report of the Working Group on Strengthening Financial Systems, "Bank for International Settlements", ~ (1998)
  31. Basle Committee on Banking Supervision, "Consultative Document: Core Principles for Effective Banking Supervision", Issued for comment by 20 March 2012, ~ (2011)
  32. Basle Committee on Banking Supervision, "Core Principles for Effective Banking Supervision", ~ (2006)
  33. Basle Committee on Banking Supervision, "Core Principles Methodology", ~ (2006)
  34. Joanna Bird, "Regulating the Regulators: Accountability of Australian Regulators", Melbourne University Law Review, 35(3), pp.739~772 (2011)
  35. Julia Black, "Constructing and Contesting Legitimacy and Accountability in Polycentric Regulatory Regimes", Regulation and Governance, 2(2), pp.137~164 (2008)
  36. Mark Bovens, "Analysing and Assessing Accountability: A Conceptual Framework", European Law Journal, 13(4), pp.447~468 (2007)
  37. Richard C. Breeden, "Thumbs on the Scale: The Role That Accounting Practices Played in the Savings and Loan Crisis", Fordham Law Review, 59(6), pp.S71~S91 (1991)
  38. Chris Brummer, "Soft Law the Global Financial System: Rule Making in the 21st Century" (2012)
  39. Ross Cranston, "The Principles of Banking Law" (2002)
  40. Lorne D. Crerar, "The Law of Banking in Scotland" (2007)
  41. Ross Delston, "To Protect or Not to Protect, That is the Question: Statutory Protections for Financial Supervisors -- How to Promote Financial Stability by Enacting the Right Laws", Paper presented at the Seminar on Current Developments in Monetary and Financial Law (2006)
  42. Robert Dijkstra, "Liability of Financial Supervisory Authorities in the European Union", Journal of European Tort Law, 3(3), pp.346~377 (2012)
  43. Robert Dijkstra, "Liability of Financial Regulators: Defensive Conduct or Careful Supervision", Journal of Banking Regulation, 10(4), pp.269~284 (2009)
  44. Robert Dijkstra, "Compensating Victims of Bankrupted Financial Institutions: A Law and Economics Analysis", Journal of Financial Regulation and Compliance, 19(2), pp.156~173 (2011)
  45. Larisa Dragomir, "European Prudential Banking Regulation and Supervision: The Legal Dimension" (2012)
  46. Financial Services Authority, "Reasonable Expectations: Regulation in a Non-zero Failure World", ~ (2003)
  47. Ivo Giesen, "Regulating Regulators through Liability: The Case for Applying Normal Tort Rules to Supervisors", Utrecht Law Review, 2(1), pp.8~31 (2006)
  48. Charles A.E. Goodhart, "Regulating the Regulator-An Economist’s Perspective on Accountability and Control, In Regulating Financial Services and Markets in the Twenty First Century", pp.151~164 (2001)
  49. Charles A.E. Goodhart, "Financial Regulation: Why, How and Where Now?" (1998)
  50. Joanna Gray, "Lessons from BCCI saga for the current accountability debate surrounding Northern Rock?", Journal of International Banking Law and Regulation, 23(4), pp.37~43 (2008)
  51. Joanna Gray, "Melton Medes Ltd v Securities and Investment Board", Journal of Financial Regulation and Compliance, 3(3), pp.294~299
  52. Eyvindur G. Gunnarsson, "The Icelandic Regulatory Response to the Financial Crisis", European Business Organization Law Review, 12(1), pp.1~39 (2011)
  53. Christos Hadjiemmanuil, "The Justification for Immunity from Damages Liability for UK Financial Regulators", Company Lawyer, 31(10), pp.317~325 (2010)
  54. International Monetary Fund, "Monetary and Exchange Affairs Department, Supporting Document to the Code of Good Practices on Transparency in Monetary and Financial Policies", IMF Executive Board, ~ (2000)
  55. International Monetary Fund, "Code of Good Practices on Transparency in Monetary and Financial Policies: Declaration of Principles", Interim Committee, ~ (1999)
  56. The Accountability of Financial Supervisors: Principles and Practice, "Eva Hüpkes", International Monetary Fund, ~, pp.WP (2005), 05[DOI]
  57. The Legal Aspects of Bank Insolvency: A Comparative Analysis of Western Europe, "Eva Hüpkes", United States and Canada, ~ (2000)
  58. Margaret Hyland, "Is ASIC Sufficiently Accountable for Its Administrative Decisions? A Question of Review", Company and Securities Law Journal, 28(1), pp.32~53 (2010)
  59. Objectives and Principles of Securities Regulation, "International Organization of Securities Commissions", International Organization of Securities Commissions, ~ (2003)
  60. Rosa Maria Lastra, "Legal Foundations of International Monetary Stability" (2006)
  61. Rosa Maria Lastra, "Public Accountability in the Financial Sector, In Regulating Financial Services and Markets in the Twenty First Century", pp.165~188 (2001)
  62. Richard Mulgan, "‘Accountability’: An Ever-expanding Concept?", Public Administration, 78(3), pp.555~573 (2000)
  63. Recommendation of the Council on Regulatory Policy and Governance, "OECD", OECD, ~ (2012)
  64. Policy Framework for Effective and Efficient Financial Regulation: GENERAL GUIDANCE AND HIGH-LEVEL CHECKLIST, "OECD", OECD, ~ (2009)
  65. Anthony Ogus, "Regulation: Legal Form and Economic Theory" (2004)
  66. Alan Page, "Regulating the Regulator-A Lawyer’s Perspective on Accountability and Control, In Regulating Financial Services and Markets in the Twenty First Century", pp.127~149 (2001)
  67. John Palmer, "Review of the Role Played by the Australian Prudential Regulation Authority and the Insurance and Superannuation Commission in the Collapse of the HIH Group of Companies", ~ (2002)
  68. Charles Proctor, "Regulatory Liability for Bank Failures: The Peter Paul Case", Euredia, pp.73~111 (2005)
  69. Charles Proctor, "Financial Regulators-Risks and Liabilities, Part 1", Butterworths Journal of International Banking and Financial Law, 17(1), pp.15~22 (2002)
  70. Charles Proctor, "Financial Regulators-Risks and Liabilities, Part 2", Butterworths Journal of International Banking and Financial Law, 17(2), pp.71~79 (2002)
  71. Filippo Rossi, "Tort Liability of Financial Regulators: A Comparative Study of Italian and English Law in a European Context", European Business Law Review, 14(6), pp.643~671 (2003)
  72. Alessandro Scarso, "Tortious Liability for Regulatory Authorities", European Tort Law, pp.94~116 (2005)
  73. Dalvinder Singh, "Banking Regulation of UK and US Financial Markets" (2007)
  74. René Smits, "Supervisory Liability: An Introduction to Several Legal Systems and a Case Study, In International Bank Insolvencies: A Central Bank Perspective", pp.363~383 (2009)
  75. Michel Tison, "Do not Attack the Watchdog! Banking Supervisors Liability After Peter Paul", Common Market Law Review, 42(3), pp.639~675 (2005)
  76. Challenging the Prudential Supervisor: Liability versus (Regulatory) Immunity: Lessons from the EU Experience for Central and Eastern European Countries, "Michel Tison", Financial Law Institute, ~, pp.Financial Law Institute Working Paper No. 2003-04 (2003)
  77. Alan Tyree, "Banking Law in Australia", ~ (2011)
  78. Alan Tyree, "Weerasooria’s Banking Law and the Financial System in Australia", ~ (2006)
  79. Adrian Zuckerman, "A Colossal Wreck-the BCCI-Three Rivers Litigation", Civil Justice Quarterly, 25, pp.287~311 (2006)
  80. 松尾直彦, "金融商品取引法" (2011)
  81. 下山憲治, "抵当証券業の更新登録を違法として国家賠償請求が認容された事例-大和都市管財訴訟控訴審判決", 早稻田法學, 84(4), pp.85~98 (2009)
  82. 金融庁, "金融担当大臣談話 (大和都市管財訴訟·控訴審判決について)", ~ (2008)
  83. 小田大輔, "登錄制と金融當局の監督責任-大和都市管財事件判決を契機として", 金融法務事情, 55(21), pp.1~

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