금융기관 및 그 임⋅직원 제재제도에 대한 몇 가지 쟁점 - 행정법적 논의를 통하여 -

Recently as the sanctions against financial institutions continue due to the successive insolvency of private equity funds, interest in the sanctions system against financial institutions and their executives and employees is being raised. The legal basis for sanctions is based on each financial law, such as the Banking Act, the Capital Markets Act, the Insurance Business Act, etc. However, important and specific matters are placed in public notices(gosi), which are administrative rules. There is controversy over the legal principles of delegation. It is desirable to base important matters such as types and requirements of sanctions on the act and decree as much as possible. Sanctions against executives and employees are accompanied by qualification restrictions such as restrictions on the appointment of executives. The use of the undefined concept in the requirements of sanctions is also controversial. Although it is due to the specialized and technical necessity of the financial law, efforts are needed to materialize it. The discretion of the administrative agency should be exercised rationally in judging the factors to be considered for sentence. The authority to sanction is divided into the Financial Services Commission and the Financial Supervisory Service, in which the FSC delegates authority to the FSS. The Sanctions Deliberation Committee is operated as an advisory body of the director of the supervisory service and is operated in an adversary system, and neutrality of decision-making is secured in the composition of its members. The Administrative Procedure Act also applies to sanctions procedures. Sanctions include penalty surcharge and fine for negligence. The penalty surcharge used in sanctions is a kind of transformative penalty surcharge. However, the corrective effect should be considered when using the penalty surcharge. It is desirable to allow administrative adjudication and litigation to dispute fines. On the other hand, the disposition of reprimand warnings in relation to right relief is recognized as a precedent. Even in the case of voluntary measures, the party must be able to dispute it through administrative litigation by recognizing the disposition. In the case of a shareholder’s claim to be a plaintiff, it is limited in circumstances such as the dissolution of the company and the impossibility of returning to business.