금융투자회사 영역별 지배구조의 차별적 접근 검토- 영미법상 신인의무에 기반하여 -

Financial companies are divided into various fields, such as banks, securities, and insurance, depending on the business they handle. Considering that there is a difference in the contents of the business dealing with each financial company type and the degree of risk faced, it is necessary to consider how to approach the specific contents of the director's duties that play a key role in governance. It is natural that the obligations of the directors of each financial institution should vary according to the characteristics of the various types of financial industry and the magnitude of the risks exposed. In this approach, the director's duty is understood as fiduciary duty that encompasses the duty of care to do the best in performance and the duty of loyalty to prioritize the company's interest in situations of conflict of interests. Indeed, the attitude of the court, which recognizes the degree of duty differently to the ordinary director, the outside director, and the operating director, may also be considered. By imposing trust obligations according to the size of the company and the risks of financial transactions and the degree of authority over customer assets, compliance activities can be enhanced, and moreover, the composition of the board of directors, internal control, and compliance monitoring, etc. It will have the effect of forcing the selection of the right person in the field of the due to the nature of fiduciaryrelationships that exist in various forms, courts are expected to play an active role in not only typical trustees, but also the so-called “fact-based fiduciary” that occurs in a variety of situations.