금융회사 지배구조법에 관한 일고(一考)

1. The Act of Financial Companies’ Governance structures(Law No.13453) (hereinafter referred to as “Act”) was promulgated on July 31, 2015 and is force from August 1st, 2016 in Korea. The Act does not harmonize with Korean Commercial Code(hereinafter referred to as “Code”) which is the fundamental law for Korean companies. The Act also contains contradictory provisions to each other, ambiguous regulations or stipulations against its purpose. 2. The important problems in the act are as followings. (1) The Act provides ‘executive managers’ as the executive organs of financial companies, but dose not stipulate their obligations, liabilities, and registrations, etc. (2) The Act provides that the board of a financial company should be composed in principle of three persons or more and a majority outside directors of total directors(so-called, supervisory board of directors). But the Act dose not provide that such financial company should adopt mandatorily executive officer system under the Code. Therefore, a financial company may adopt so-called executive board of directors. But it is cleary contradictory and also makes both functions of the administration(execution) and the supervision of the board of directors drop off that a financial company without executive officer system(namely, a financial company with executive boards of directors) should have a majority outside directors of total directors (supervisory board of directors). (3) The Act provides that a financial company in principle should have the audit committee which is one of the committees under the board of directors as auditing organ. But the members of audit committee should be appointed and removed by resolution of the shareholders’meeting in which the voting rights of certain shareholders are limited. The audit committee system is the system on the condition of supervisory board of directors with executive officer system under the Code. Therefore, it is clearly contradictory that a financial company without executive officer system(namely, executive board of directors) should have the mandatory audit committee. 3. I would propose followings for transparent and effective management of a financial company. (1) A financial company in principle should absolutely adopt the executive officer system under the Code. In other words, the Act should provide that a financial company should mandatorily adopt the executive officer system under the Code separated from board of directors. Such provision is harmonized with the provision of majority outside directors in board of directors. In this case, the provisions for executive managers in the Act should be deleted. (2) The members of the audit committee in a financial company should be appointed and removed not by the shareholders’ meeting but by the (supervisory) board of directors. For this purpose, the provision for appointing and removing members of the audit committee by shareholders’ meeting in the Act should be deleted. All members of the audit committee should be outside(independent) directors for more effective auditing to executive organ.