금융기관 임직원 제재 절차의 공정성과 투명성 확보를 위한 법제 개선 방안 (Improvements of the System of Sanctions on Officers and Employees of Financial Institutions in Korea)

서지정보

· 발행기관 : 성균관대학교 법학연구원
· 수록지 정보 : 성균관법학 / 24권 / 1호 / 281 ~ 311페이지
· 저자명 : 고동원

초록

In the area of financial regulation, the system of sanctions against officers and employees of financial institutions is very important, in that the imposition of sanctions on them may greatly affect the reputation of the concerned officers and employees, and further may restrict their employment in financial institutions for a certain period under the current laws and regulations. In other words, it is believed that the sanction may restrict the "basic or fundamental rights" of a person under the Constitution. In that respect, this article seeks to deal with analyzing the current system of sanctions against officers and employees of financial institutions, in order to find out the problems thereof and to suggest certain recommendations for the improvement of the current sanction system by conducting a comparative analysis of the United States and the United Kingdom cases with respect to the relevant issues. In particular, this article focuses on the analysis and recommendations in terms of procuring transparency, fairness and reliance in the sanction decision process based on the "due process" principle.
Thus, this article suggests the following. First, a unified and consolidated law needs to be enacted in order to maintain the consistency in the respect of sanction grounds and types of sanctions among financial institutions. Second, the new law should include the types of sanctions and sanction grounds as well as sanction procedures which are currently prescribed in the relevant sanction regulations and rules enacted by the financial regulator without manifest delegation from the relevant statutes. Third, a hearing process should be adopted in the procedures of decision of all types of sanctions. Fourth, it is necessary to allow a sufficient opportunity for financial institutions' officers or employees to argue against the financial regulator’s sanction position and reasons therefor and to appeal the decision held to another separate authority or institution independent from the financial regulator. Finally, an independent decision committee, which consists of outside specialized and independent members and has powers of final sanction decision, needs to be established under the Financial Services Commission, a financial policy decision-maker, in order to make a fair and transparent sanction decision.

영어초록

In the area of financial regulation, the system of sanctions against officers and employees of financial institutions is very important, in that the imposition of sanctions on them may greatly affect the reputation of the concerned officers and employees, and further may restrict their employment in financial institutions for a certain period under the current laws and regulations. In other words, it is believed that the sanction may restrict the "basic or fundamental rights" of a person under the Constitution. In that respect, this article seeks to deal with analyzing the current system of sanctions against officers and employees of financial institutions, in order to find out the problems thereof and to suggest certain recommendations for the improvement of the current sanction system by conducting a comparative analysis of the United States and the United Kingdom cases with respect to the relevant issues. In particular, this article focuses on the analysis and recommendations in terms of procuring transparency, fairness and reliance in the sanction decision process based on the "due process" principle.
Thus, this article suggests the following. First, a unified and consolidated law needs to be enacted in order to maintain the consistency in the respect of sanction grounds and types of sanctions among financial institutions. Second, the new law should include the types of sanctions and sanction grounds as well as sanction procedures which are currently prescribed in the relevant sanction regulations and rules enacted by the financial regulator without manifest delegation from the relevant statutes. Third, a hearing process should be adopted in the procedures of decision of all types of sanctions. Fourth, it is necessary to allow a sufficient opportunity for financial institutions' officers or employees to argue against the financial regulator’s sanction position and reasons therefor and to appeal the decision held to another separate authority or institution independent from the financial regulator. Finally, an independent decision committee, which consists of outside specialized and independent members and has powers of final sanction decision, needs to be established under the Financial Services Commission, a financial policy decision-maker, in order to make a fair and transparent sanction decision.

참고자료

· 없음