개정 상법상 준법지원인 제도의 문제점과 그 개선방안

The New Korean Commercial Code Amendment(the “amendment”) introduced the mandatory compliance officer and the amendment will enter into force from April 15, 2012. According to the amendment, listed companies above certain size, which will be determined by the presidential enforcement decree, must adopt one or more compliance officers within the companies (Art. 542-12 Sec. 2 of the amendment). However, there is no similar legislature in other countries which require mandatory compliance officer to the listed company generally. In the U.S., only the financial institutions such as investment advisers and investment companies are required to have compliance officers and internal control system. Even after Sarbanes-Oxley Act, compliance officer and effective internal control system are only the incentive to reduce the sentence under the Federal Sentencing Guidelines. Considering other countries legislature, there are misleading assertions in Korea that many developed countries have mandatory compliance officer or the mandatory compliance officer is the trend in such countries’ legislature. Such assertions are making confusions by mixing the concept of the internal control and compliance officer. There are several problems of mandatory compliance officer in the amendment. It is unreasonable for the amendment to adopt mandatory compliance officer without effective incentives. Under such structure, government authorities needs to supervise continually to confirm the effectiveness of compliance officer system. Historically compliance officers are adopted in the U.S. because U.S. companies are not required to have a standing auditor. In Korea, statutory auditors are required if the company does not have audit committee instead. Thus the Korean companies, which have statutory auditors, do not have any reasonal basis to have compliance officers in addition to the statutory auditors, since their functions may be duplicated. Moreover, the amendment do not have any provision on the relations between statutory auditor or audit committee and compliance officer. Under the amendment, compliance officers are appointed by the board of directors while the statutory auditors or audit committee members are appointed by the shareholders meeting. Since they are within the same company and doing the similar functions, the provisions to make clear the relationship between them. The amendment provides that the term of the compliance officer is 3 years. However, there is no mentions on whether compliance officer can be removed within such term or if can be removed, what the reasons of such removal will be. Also there needs a provision whether the offices of compliance officer and director or auditor/audit committee member may be held by the same individual or not. The relations between the general counsel or in-house counsel and the compliance officer is not clear, too. The functions of the compliance officer are as important as one of the corporate officers. However, the amendment has no provision on the compliance officer’s liability similar to other executive officers. Since there is no such provisions on liability, the compliance officer has the power to exercise without any commensurate responsibility and liability. In the amendment, there is a provision to exempt the fines to the corporation for a specific violation by the transactions between the corporation and the major shareholders, directors, officers, or statutory auditors, if the corporation has internal control and compliance officer. However, the effectiveness of such internal control and compliance are not specifically mentioned. The effectiveness and the minimum standard of effectiveness must be provided since the effectiveness is more important than merely adopting such system. Considering the problems of mandatory compliance officers, to resolve the problems fundamentally it need to amend the Commercial Code again to change the compliance officer as voluntary choice by the companies. If there is not enough time to amend again, the scope of companies required to have mandatory compliance officers must be reduced dramatically as minimal and be allowed to in-house counsels or officers in legal department to have the offices of compliance officers by the same individual. All the other problems mentioned above must be resolved clearly in the amendment when new amendment of Commercial Code is prepared again.