2008년 신협법 개정안에 대한 정당성·적정성 검토 ⁃ 신용협동조합 중앙회의 지배구조를 중심으로 ⁃

The Credit Union Act reform bill, presented by the government, is currently before the National Assembly. The reform bill is quite sweeping, including major changes to corporate governance of the National Credit Union Federation of Korea. The impending legal policy issue concerning the Credit Union arises from its dual character, that of an association and an enterprise. Like in most countries, the Credit Union in Korea will have to work out a way to harmonize and compromise the two features. The reform bill now before the National Assembly is based on such considerations. The real problem is in what specific ways harmonization and compromise can be realized. Is the reform bill based on justifiable and practically feasible suggestions? This paper examines from a critical view point the feasibility of the Credit Union Act reform bill by focusing on corporate governance of the National Credit Union Federation of Korea. The central ideas of the study are as follows: <1> The basic values of the Credit Union can be modified in order to enhance management of the cooperative or the National Credit Union Federation. However there should be certain limits. Enhancing efficiency and expertise with no regard to the intrinsic nature of cooperatives can amount to no more than denying the very utility of cooperatives. <2> Studying the Credit Union Act reform bill on corporate governance of the National Credit Union Federation reveals that the proposal is rather unbalanced, even in comparison with the Act of the National Federation of Agricultural Cooperative or the Act of the National Federation of Fisheries Cooperatives, not to mention the Act of the Korean Federation of Community Credit Cooperative. Such a disparity between largely similar institutions leaves much room for criticism from the viewpoint of Constitutional equality that treats 'like cases alike and different ones differently'. The Financial Investment Services and Capital Markets Act based on the 'equal function, equal regulation' principle can also serve to illuminate the inappropriateness of the proposal. <3> The Credit Union Act reform bill is unfeasable not only from a legal policy perspective but also from a legal doctrine viewpoint. A telling example can be the provision (Article 72, paragraphs 4 and 5 of the Credit Union Act reform bill) mandating the president of the National Credit Union Federation to delegate authority to inspection/auditing director and planning director. Another example concerns decisions by the small board of directors which "shall include matters deemed necessary by more than 1/3 of the credit‧mutual aid project directors or small board of directors" (Article 75 bis paragraph 3, item 6). <4> Legal provisions should be general and abstract in nature in order to provide predictability, even in the most extreme circumstances. However the reform bill is lacking in such a respect. Absent are the minimum number of officers in the National Credit Union Federation, the maximum number of executive directors of the borad of directors, the maximum number of members of the small board of directors, etc,. <5> The reform bill leaves open the possibility of a competence dispute. The reason why cooperate governance is regulated by law is to facilitate management by preventing competence disputes between various government agencies. However the reform bill is lacking in such respects. A telling example is the fact that the decision of the board of directors "includes matters deemed necessary by the president or more than 1/3 of directors (Article 75, paragraph 1, item 8), as well as matters deemed necessary by more than 1/3 of the credit‧mutual aid project directors or small board of directors"(Article 75 bis paragraph 3, item 6). The essence of the Credit Union Act reform bill on reorganizing corporate governance of the National Credit Union Federation is to ensure its management soundness. It would be hard to disagree with such a view. This paper was written in the hope that the much debated amendment process of the Credit Union Act may fill gaps in financial demand, thereby contributing to the Credit Union's sustainable development, as well as Korea's financial market.