日本會社法上 內部統制시스템구축관련 論議에 대한 考察

Establishing internal control function is what the representative director(CEO)and full-time executive directors (hereafter to be regarded as sharing same role with representative director) have to achieve as part of their business, and shall be included in representative director’s comprehensive obligation of due care within joint stock corporation. However, looking at the chains of large or small mishaps that has happened recently, it looks that the mishaps were caused by lack of internal control function or, even if the function exists, by poor performance of all functions. It is very fortunate that more scholars are studying this with a sense of materiality recently. In case of Japan, discussion on this agenda had already started in mid 1990s after bubble burst, reaching the peak stage just before enactment of New Corporations Law in 2005. Japan succeeded to enact establishment of basic principle on internal control preparation as the right(role) of board of directors, by adopting Corporations Law, Article 362, paragraph 4, sub-paragraph (6) effective from May 1, 2006 which stipulates that “Preparation of a structure securing the execution of the occupational duties of directors in accord with law and regulations and the articles of incorporation or otherwise preparing a structure, as provided by Ministry of Justice ordinance, as that necessary for securing the appropriateness of the business of the kabushiki kaisha.”Also, according to Ministry Ordinance announced on February 7, 2006, article 100, paragraph 1 stipulated “Regarding the structure decided by board of directors for the purpose of securing the appropriateness of the business of the kabushiki kaisha.”, and article 3 stipulated that “A company having an auditor elected shall prepare a structure as necessary for securing the execution of the occupational duties of auditor.”However, as Corporations Law and Ministry Ordinance is silent on the detailed standard for internal control level to be prepared, corporations are at a loss in practice how to prepare internal control. In this regard, it may be said that Japan is in the process of hot debate to prepare concrete standard for internal control. This situation in Japanis not irrelevant, rather significantly meaningful to improvement in Korean legal structure. In this regard, this paper introduces Japanese discussion on establishment of internal control pursuant to Japanese Corporations Law in detail to find out the implications, and try to deduce the possibility to introduce in our legal structure.