근로자의 퇴직급여 보장 방안 - 수탁자 책무를 중심으로 -

In order to guarantee employees' retirement income, we can examine each aspect of the pension benefit system by looking at the pension plan at each stage of enrollment, operation, and payment. One of the issues that have been constantly discussed to guarantee employees' retirement benefits during the stage of accumulation and operation of the retirement pension plan is the role and responsibility of the fiduciary managing the retirement pension benefits. Korea's retirement pension plan is operated in such a way that an operation and management contract and an asset management contract are concluded between the employers or/and participants and the retirement pension service providers in accordance with delegation contract in the civil law. It is difficult to see that a retirement pension service provider acts as a fiduciary under the Trust Act, in that it manages the retirement benefit reserves rather than directly managing them. Nevertheless, the current Retirement Income Security Act imposes duties equivalent to the responsibility of the fiduciary under the Trust Act to the retirement pension service provider. This is because the Retirement Income Security Act takes a special level of protection to guarantee retirement benefits for retiree pension subscribers. In addition, it can be inferred that the fiduciary jurisprudence applied to the fund-type retirement pension systems of the United States and Japan have been partially applied to the Korean retirement pension system. The fiduciary duties that are particularly important in the operation and management of pension assets are the duty of fidelity and the duty of goodwill. The fiduciary duty is understood as the principle of prohibition of conflicts of interest and principle of prohibition of taking profits. The Federal Trust Act of the United States includes relatives and family members in the scope of trustees subject to fiduciary duty, and the Federal Employee’s Retirement Income Security Act (ERISA) provides for the employers in the retirement pension plan and companies that have a significant stake in the fiduciary. It can be seen that the scope of the fiduciary is set very comprehensively. On the other hand, the Retirement Income Security Act of Korea does not include asset management companies that manufacture retirement pension fund products within the scope of fiduciary. It is thought that asset management companies can also be included in the scope of trustees under the trust law and it is necessary to regulate their obligations according to the law. The duty of care means that the fiduciary bears a passive duty to be careful not to violate laws and regulations while performing his/her duties, and an active duty to pursue the result that is in the best interest of the trustee. The U.S. Retirement Income Security Act understands the fiduciary's duty of care based on 'how a prudent person would have behaved', and understands it as 'the attention paid by a prudent person familiar with a given problem to work for a similar purpose with a similar nature'. In particular, when examining whether the trustee's investment decision was appropriate, it is based on whether the decision was made by a prudent person. In addition to the risk of loss and profit opportunity, the portfolio composition of pension assets, appropriateness of diversification, cash flow, It is determined by comprehensively reviewing the fund's management purpose and portfolio return forecast. Korea's Retirement Income Security Act does not refer to the criteria or methods for judging the duty of care, except that Article 30 (1) stipulates that retirement pension service providers performing operation and management duties must fulfill their duty of care as a good manager. It is necessary to think about how to apply the fiduciary duty equivalent to the duty of care of a prudent investor to our retirement pension service providers. In addition, the provisions of the Korean Retirement Income Security Act penalizes a mixture of penalties for employers, pension operators, and pension solicitors. Unlike natural persons, employers and pension solicitors, retirement pension providers are corporations, which are financial companies. It is necessary to consider a way to distinguish between natural persons and legal persons and constitute a separate sanction clause. With the revision of the Retirement Income Security Act in 2021, the SME Retirement Pension Fund system was introduced, and a fund-type retirement pension system is expected to be introduced in the near future. Under the current law, the role and responsibilities of the fiduciary for retirement pensions should be closely examined, and the scope, role, and responsibilities of the fiduciary needed to be set to guarantee employees' retirement income in the fund-type pension plan formulated.