내부통제 관련 금융회사 지배구조법 개정안에 대한 검토 -2023.9.11.자 윤한홍의원 대표발의안 관련-

Abstract

Although there have been frequent cases of internal control failures within financial companies, such as massive consumer damage caused by incomplete sales or long-term neglect of individual employees' deviant behavior, it has been pointed out that the limited regulatory system, which is the duty to prepare internal control standards, has limited the ability to bring about fundamental changes in the awareness and behavior of executives and employees of financial companies regarding internal control. Accordingly, in June 2023, the financial supervisory authorities announced a plan to improve the internal control system, which would expand the scope of regulation by imposing an obligation to manage internal control on officers including the representative director, clarify who are responsible for internal control by introducing an responsibility map, and clarify the role of the board of directors, which is the ultimate responsible party for internal control. An amendment to the Act on Corporate Governance of Financial Companies (the "Corporate Governance Act") reflecting such improvement plan was proposed to the National Assembly on September 11, 2023 as a representative proposal by National Assemblyman Han-Hong Yoon. This study examined the main contents of the proposed amendment to the Governance Act, reviewed the meaning and problems of the proposed amendment based on the theoretical background of internal control and relevant precedents, and proposed several ways toreasonably improve the internal control regulation system. In order for a financial company's internal control to operate effectively, it should go beyond simply establishing internal control standards, and rational operation and continuous improvement should be made. Therefore, the introduction of the obligation to manage the operation of internal control seems to contribute to the actual activation of internal control functions. In addition, the introduction of a responsibility map that requires each officer's responsibility for internal control to be allocated and stated in advance is expected to clearly recognize the responsibility for internal control and induce responsible internal control, and the statement of the responsibility for internal control by the board of directors is expected to have the effect of strengthening the board's role of monitoring internal control. However, if the Proposed Amendment specifies the duty of management as a management measure focused on the inspection of the establishment, execution, operation, and compliance of the internal control standards, etc. without properly considering the nature of each officer's responsible duties or the roles of each internal control entity, it may undermine financial companies' inducement of autonomous internal control, and may cause difficulties and confusion in the formation and allocation of management measures by each officer. In addition, imposing the duty of direct execution, i.e., inspection, on the representative director and the internal control committee is not only unclear from the role and distinction of the officers in charge of the second line of defense, such as the compliance officer or the risk manager, but also makes it difficult to allocate responsibilities when devising ways to actually perform duties or performing duties through delegation. Above all, the repeated inspection in the form of a rooftop house, in which the CEO checks whether the executives in charge carry out management measures and the internal control committee checks them again, raises concerns that internal control of financial companies will be more urgent to put themselves back in shape than to operate them in practice. Therefore, in order for the proposed amendment to the Governance Act to be more consistent with the basic direction of system improvement, i.e., encouraging autonomy and accountability of financial companies by enhancing clarity and predictability of internal control regulations, it is necessary to consider simplifying the management duties and overall management duties of officers and representative directors so that financial companies can autonomously organize specific management measures. In addition, in order to ensure that reasonable sanctions may be imposed in consideration of the limitations of internal control, it is also necessary to consider limiting the grounds for sanctions for violation of management obligations to cases where the violation causes damage to many financial consumers or significantly undermines the sound order of the financial market, and clarifying whether to take management measures based on due care as grounds for sanction reduction or exemption. Furthermore, in order to actively induce financial companies to establish and operate an appropriate internal control system, it is worth considering legislating a plan to conduct regular internal control evaluations and use the outcome as a mandatory ground for sanctions reduction.