금융지주회사의 경영지배구조에 관한 법적 검토

Abstract

The issue of corporate governance for financial institutions in Korea has been in the spotlight since the 1997 financial crisis in Korea. It was argued that such insolvency of many financial institutions during that time had been due to bad corporate governance of financial institutions. Thus, reformative measures have been so taken that the "outside director system", the "audit committee system," and the "internal control and compliance officer system" have been introduced in financial institutions, including a financial holding company, respectively. This article seeks to analyze legal issues of corporate governance of a financial holding company, under the Financial Holding Company Act of 2000 (the "FHCA") and the Enforcement Decree thereof as well as under the Commercial Code which includes the relevant provisions applicable to a listed company in terms of corporate governance, and to suggest some recommendations for improvements. Thus, this article suggests the following recommendations. First, outside directors of the board of directors of a financial holding company should be a majority, rather than the current 50%, in order to enhance the roles of outside directors. Second, the number of outside directors in the composition of an "outside director candidate recommendation committee" should be also increased to the majority or that committee should consist of all outside directors, in order to select more independent outside directors. Third, a representative director or a chief executive officer of a financial holding company should not serve as a chairman of the board of directors because he or she might have a great influence on the decision of the board of directors by such a concurrent position. Fourth, a pool of outside director candidates should be established and operated by an independent self-regulatory organization. Fifth, the relevant provision of procedures for selecting a representative director of a financial holding company (i.e., establishment of a representative director candidate recommendation committee) should be introduced in the FHCA for allowing a more qualified representative director to be selected. Sixth, the current system where a whole-owned subsidiary or sub-subsidiary financial institution is exempt from establishing outside directors should be abolished or improved, even though there exist no minority shareholders, in order to protect creditors of such a financial institution, including depositors or investors. Seventh, the current system of selecting audit committee members by the board of directors in case of a non-listed or medium-sized listed financial holding company or by the resolution of shareholder meetings in case of a large-sized listed financial holding company should be consolidated into the selection by the resolution of shareholder meetings, and the current two steps of selecting directors and then selecting audit committee members among such selected directors by the shareholder meetings' resolutions in case of a large-sized listed financial holding company should be streamlined into the direct selection of audit committee members in the shareholder meetings. Eighth, the exemption of establishing an audit committee in case of a whole-owned subsidiary or a sub-subsidiary financial institution should be also abolished or improved. Finally, legislative measure (i.e., insertion of exemption clause in the FHCA) has to be taken in order that a listed financial holding company whose recent total assets exceed 500 billion Won and operates the internal control and compliance officer system under the FHCA be exempt from the requirement of the compliance control and compliance officer system under the Commercial Code, although this exemption is prescribed under the Enforcement Decree of the Commercial Code, for more clarification from the legal perspective.