금융감독상의 제재와 적법절차에 관한 고찰

The financial industry is highly regulated field. The regulation includes restrictions of the freedom of business and property rights secured by Constitution. The statutes delegates a broad discretion to the financial supervisory agencies, which includes the rule-making powers and disciplinary actions. Although the broad delegation is necessary to cope with ever-changing financial markets and to use specialities and experiences of the agencies, it should be within a proper constraint. In this regard, the due process control, rather than the substance control, is considered more efficient. This thesis discusses the due process requirements in disciplinary actions by the financial supervisory agencies, with comparative analysis of the practices of the United States and England The Constitution provides for the due process and the Administrative Procedure Act was enacted to implement it. However, it does not appear that the requirements of the due process are fully implemented with regard to the financial supervisory actions. In the Securities and Exchange Commission(SEC) of the United States, the Administrative Law Judge(ALJ) holds hearings and in the Financial Services Authority(FSA) of England, the regulatory decisions are made by the Regulatory Decisions Committee(RDC), the majority of which comprise of outside persons. Although our financial supervisory agencies also have the Disciplinary Review Committee, it is not comparable to those of the United States and England. The financial disciplinary actions include the barring of directors or employees and monetary penalties, as well as revocation or suspension of permit. Such a serious disciplinary action necessarily requires the quasi-judicial adjudication by the independent, fair and competent hearing officers.