책무구조도와 내부통제 관리의무 ―영국의 고위경영진 제도를 중심으로―

In Korea, on December 8, 2023, the amendment to the Act on the Corporate Governance of Financial Companies (hereinafter referred to as the “Governance Act”), which improved the internal control system of financial companies by referring to the UK's Senior Managers & Certification Regime(SM&CR), was passed by the National Assembly and is scheduled to be implemented from July 2024. The purpose of this article is to introduce the specific contents of the UK SM&CR in advance of its introduction in Korea, to understand its fundamental purpose and operation, and to establish the system in the Korean legal system to fulfill its purpose. SM&CR is a financial regulation introduced in the United Kingdom to strengthen the individual accountability of senior managers for the internal controls of financial companies. The core of the system is to strengthen senior managers accountability by assigning clear responsibilities to the top decision-makers of financial companies in advance and imposing a duty of care for misconduct in their areas of responsibility. The Responsibilities Map and the Statement of Responsibilities are tools under the Financial Regulation Act that clarify the distribution of responsibilities among senior managers and address information asymmetries in the supervisory authorities' information to enable a proactive enforcement approach to supervision of financial firm risks. The aim is not to increase sanctions against senior managers, but rather to strengthen the link between supervisors and financial companies so that future risks can be identified in advance and supervisors can intervene proactively to prevent financial incidents. The ‘internal control management obligation’ imposed on executives, through this amendment to the Corporate Governance Act is an indeterminate concept that is both abstract and comprehensive. The lack of clarity and predictability of sanctions in terms of enforcement for violations of the internal control management duty of care imposed on executives may lead financial companies to adopt overly conservative internal control procedures to prepare for inconsistent and opaque supervision, or, conversely, not to make any effort to comply at all, thereby rendering the system ineffective. Efforts should be focused on refining the meaning of “principles” and “standards” as much as possible to capitalize on their flexibility, while ensuring that they do not undermine legal stability, and on establishing reasonable exemptions. In order for the introduction of this regime to be successful in establishing internal controls in financial firms, it is important that the sanctions regime does not act as a means of shielding management from the consequences of financial incidents. The UK's SM&CR and its adoption in Korea should lead to a paradigm shift in which senior managers of financial companies are required to account for their internal control efforts in their areas of responsibility, rather than maintaining a state of ignorance by claiming that they were unaware of employee misconduct when a financial incident occurs.