금융회사 이사의 내부통제체제 구축ㆍ운영 의무에 관한 연구 ― 개정 금융회사지배구조법을 중심으로 ―

This study aims to examine the legal nature and measures to enhance the effectiveness of the duty of directors of financial companies to establish and operate internal control systems, focusing on the amended Act on Corporate Governance of Financial Companies (hereinafter the “Act”), which came into effect in July 2024 in the wake of recent large-scale financial accidents. This discussion originates from the critical awareness that the conventional internal control framework failed to effectively control excessive risk-taking by financial institutions, thereby causing large-scale consumer harm and financial accidents. To overcome the limitations of the existing governance structure that failed to establish and operate an effective internal control system, the amended Act fundamentally transformed the regulatory paradigm by clarifying the specific management duties of individual executives. However, the introduction of advanced laws and institutions did not immediately guarantee the establishment of a robust internal control culture. The successful settlement of the amended Act depends on how effectively the interpretive gray areas left by the law and the operational challenges arising from complex financial realities are overcome. Therefore, this paper first analyzes the legal nature of the internal control duty as an extension of the duty of care and duty of oversight under the Korean Commercial Act, and provides an in-depth diagnosis of the legal and operational challenges identified in the early stages of the Act's enforcement. Legal challenges include: first, the fact that the concept of “reasonable care”, a key requirement for sanction mitigation, remains abstract and fails to provide clear behavioral guidelines to subjects; and second, the risk that the Responsibilities Map may devolve into a formal document for evading responsibility rather than clarifying it. Operational challenges include: first, confusion due to the lack of criteria for responsibility allocation under the co-representative system; second, the erosion of checks and balances due to the CEO concurrently serving as Board Chair; third, the tendency for senior executives to shift responsibility to lower-level officers; and fourth, the critical examination of the problem where responsibility allocation is inconsistent with internal control standards or is merely formal. To address these issues, this study derived implications by conducting a comparative legal analysis of the UK's Senior Managers and Certification Regime (SMCR) and the Caremark doctrine under Delaware corporate law. Based on this, the following improvement measures are proposed. First, as a legislative improvement under the Act, this study proposes establishing the criteria for “reasonable care” as specific interpretive guidelines and introducing a procedural presumption clause in the Act that recognizes exemption from liability when pre-approved procedures are followed, thereby revitalizing the spirit of principles-based regulation. It also argues for institutionalizing the designation of a single responsible officer for essential corporate risks to internalize the US “mission-critical” doctrine. Second, as an operational improvement for the internal control system, this study proposes mandating the separation of the CEO and Board Chair to establish a substantive supervisory system centered on the board, and complementing the structural limitations of Korea's unified supervision model by functionally separating prudential management and conduct supervision organizations within systemically important financial institutions. Furthermore, it advocates for institutionalizing the designation of a single person responsible for the company's essential risks to internalize the U.S. ‘mission-critical’ doctrine into supervisory regulations or guidelines. By proposing specific legislative and policy alternatives for the successful settlement of the amended Act based on current issues, this study aims to contribute to establishing a substantive culture of responsible management in financial companies and ultimately enhancing financial consumer protection and trust in the financial system.