금융감독기관의 감독배상책임에 관한 연구

Supervisory liability is one of the regulatory tools to hold financial supervisors to account. It refers to the liability of financial supervisors for third party losses caused by the defective performance of their supervisory tasks. There is no cases involving supervisory liability in Korea other than one case on the liability of financial supervisors for their defective examination of registration statement and prospectus. Recently some depositors and other creditors claimed the liability of financial supervisors for their incomplete supervision of failed mutual savings banks. However, there is no comprehensive discussion on the merits of supervisory liability arrangements in Korea. Subjecting financial supervisors to accountability via supervisory liability arrangements has been recognized as reconciling supervisors’ independence with external control system. It seems that we have relevant legal system for a relatively wide supervisory liability. However, excessive requirement of accountability via supervisory liability arrangements can conflict with the elements of efficiency, independence and expertise. In particular, an overemphasis of the substantive accountability on the matters of policies and judgments may cause another problems like defensive supervision or chilling effect. This paper is to examine the policy backgrounds of supervisory liability, to compare the systems and relevant cases in several jurisdictions, and to apply its findings to an assessment of the current legal system in Korea. Finally, this paper recommends the introduction of partial exemption of supervisory liability.