금융기관 이사의 부실경영책임에 관한 연구

Abstract

우리나라는 1997년 금융위기로 인해 많은 금융기관들이 통·폐합 또는 파산하였다. 그런데 이러한 금융위기의 주된 원인 중의 하나로 금융기관 이사의 부실경영이 지적되었다. 금융기관 이사의 부실경영의 개념은 학문적으로나 실무적으로 아직 정립되어 있지 않다. 다만 “금융산업의 구조개선에 관한 법률” 및 예금자보호법에서 ‘부실금융기관’을 재무상태가 채무초과상태이거나 정상적인 영업이 불가능한 상태의 금융기관이라고 정의한 것을 고려하면, 금융기관 이사의 부실경영이란 금융기관 이사의 위법·부당행위로 인하여 금융기관을 심각한 자본잠식 또는 도산위기에 처하게 한 경영이라고 할 수 있다. 금융기관의 이사는 금융기관과 위임관계에 있으므로 금융기관에 대하여 선량한 관리자의 주의의무를 부담한다(상법 제382조 제2항). 그리고 법령과 정관의 규정에 따라 금융기관을 위하여 그 직무를 충실히 수행해야 하는 충실의무를 부담한다(상법 제382조의3). 이러한 충실의무로부터 금융기관의 이사는 비밀유지의무(상법 제382조의4), 경업금지의무(상법 제397조), 회사기회유용금지의무(상법 제397조의2), 회사와의 거래 금지의무(상법 제398조) 등의 의무도 부담한다. 결국 금융기관의 이사는 주의를 기울이고 금융기관과의 이익충돌을 피하면서 성실하게 금융업무를 수행해야 한다. 금융기관의 이사가 부실경영을 하여 금융기관에 손해를 입힌 때에는 상법상 금융기관에 대한 배상책임을 진다(상법 제399조 제1항). 부실경영으로 인하여 회사에 손해를 입힌 이사의 책임을 회사가 추궁하지 않는 경우에는 소수주주가 회사를 위하여 이사의 책임을 추궁하는 대표소송을 제기할 수 있다. 금융기관의 이사가 부정행위나 법령·정관에 위반한 행위를 한 경우에는 주주총회의 특별결의로 이사를 해임할 수 있고, 그 해임이 부결된 때에는 소수주주가 법원에 이사의 해임을 청구할 수 있다(상법 제385조). 또한 이사가 고의 또는 중과실로 임무를 게을리 하여 제3자에게 손해를 가하였을 때에는 제3자에 대하여도 손해배상책임을 부담한다(상법 제401조 제1항). 그리고 그 행위가 불법행위요건을 갖춘 때에는 민법상 불법행위책임도 진다(민법 제750조). 민사상 손해배상 외에도 금융기관의 이사는 부실경영 행위로 인하여 징역 또는 벌금의 형벌에 처해질 수 있고 감독당국으로부터 해임권고, 직무정지, 과태료·과징금 부과 등의 제제조치를 받을 수 있다. 금융기관은 全국민 또는 국가경제를 대상으로 자금중개기능과 지급결제기능을 수행함으로써 국가경제의 발전을 촉진하는 역할을 하므로 공공성이 매우 강한 특징을 갖는다. 그리고 금융기관의 예금자 대부분은 일반 국민들로서 일반 사업회사의 상업적 채권자보다 보호의 필요성이 훨씬 높다. 이렇듯 금융기관은 일반 회사와 달리 공공적 역할을 수행하고 금융소비자를 보호해야 하는 위치에 있기 때문에 금융기관의 건전성 유지는 국가경제 발전에 중요한 관건이 된다. 이와 관련하여 금융기관의 이사에게 일반 사업회사의 이사보다 더 높은 수준의 선관주의의무를 부여하여야 한다는 주장이 제기되고 있다. 하지만 이러한 견해에 대하여 반대하는 의견도 존재한다. 생각건대, 금융기관은 공공성이 매우 크고 경제 전체에 미치는 영향이 지대함을 고려하여 이러한 금융업무를 수행하는 이사에게 높은 수준의 선관주의의무를 부과하는 것이 바람직하다고 판단된다. 실천방안으로 관련 법령에 금융기관 이사의 고도의 선관주의의무를 명시하고 이사의 선관주의의무 위반의 기초가 되는 사실의 인식에 대해 추정규정을 두는 것이 바람직하다. 금융기관 이사의 배임행위에 대하여 판례에서는 상법상 특별배임죄(상법 제622조)를 배제하고 형법의 업무상 배임죄(형법 제356조)를 주로 적용한다. 그 이유는 특별배임죄나 업무상 배임죄의 형량이 동일하지만 업무상 배임죄에 대하여는 “특정경제범죄 가중처벌 등에 관한 법률”(이하 ‘특경법’이라 한다) 제3조에 의하여 이득액에 따라 최대 무기 또는 5년 이상의 징역과 이득액 상당의 벌금을 병과할 수 있기 때문이다. 이사의 배임적 행위에 대하여 특별배임죄의 규정이 있음에도 불구하고 편의적 이유 때문에 이를 적용하지 않음으로써 그 제정취지가 몰각되는 결과를 초래하므로 이를 개선하기 위하여 특별배임죄의 법정형을 업무상 배임죄의 경우보다 높이고 특경법 제3조도 적용할 수 있도록 하는 것이 필요하다. 금융감독업무의 효과적인 목적달성을 위하여 개인에 대한 과징금부과제도의 도입, 과태료 일부 항목의 과징금 변환, 과징금 항목의 확대, 과징금 및 과태료의 증액 등 금전적 제재를 강화하는 것이 필요하다.|Many financial institutions went though M&A or bankruptcy as a result of the financial crisis of 1997 in Korea. Directors' poor management was pointed out as one of reasons for the financial crisis. The concept of poor management of directors of financial institutions (hereinafter referred to as "Directors") has not been established in academic and practical fields. Given that 'insolvent financial institutions' are referred to as the financial institutions that are in a state of being unable to operate in a normal way or in a state of deficiency in terms of financial statement, as defined in the "Act on the Structural Improvement of the Financial Industry" and "Depositor Protection Act," the poor management of Directors can be defined as a management that has engendered the impairment of capital or bankruptcy crisis in financial institutions as a result of illegal act or unfair practice of Directors.

Directors have in good faith duty of care toward financial institutions as they are entrusted with business management from the financial institutions (Section 2 of Article 382 in Commercial Act). And Directors have a duty of loyalty toward the financial institutions in carrying out their duties for the financial institutions in accordance with any laws and by-laws (Section 3 of Article 382 in Commercial Act). Such duty of loyalty involves (i) a duty of confidentiality (Section 4 of Article 382 in Commercial Act), (ii) a duty of complying with prohibition from competition (Article 397 in Commercial Act), (iii) a duty of complying with prohibition from appropriation of company's business opportunity (Section 2 of Article 397 in Commercial Act), and (iv) a duty of complying with prohibition from self-dealing transaction with a company (Article 398 in Commercial Act). In other words, Directors should diligently carry out their business operations by doing their duty of care and by avoiding any conflict of interest with the financial institutions.

Directors should be legally liable for the harm or demage to financial institutions as defined in Commercial Act in the event that they cause any harm or damage to the financial institutions due to poor management (Section 1 of Article 399 in Commercial Act). If a company does not call Directors to account for any damage to the company due to their poor management, minority shareholders may file a representative suit against Directors on behalf of the company. Directors may be removed from office by a special resolution adopted at shareholders' meeting if they committed unfair acts in violation of any laws or by-laws. In case such removal of Directors is rejected at the shareholders' meeting, minority shareholders may request the court to remove the Director (Article 385 in Commercial Act). Directors should be liable for damages against a third party if they have neglected their duties intentionally or by gross negligence (Section 1 of Article 401 in Commercial Act). Furthermore, Directors should be liable for torts as defined in Civil Act if their act constitutes torts. In addition to civil damage, Directors may be subject to criminal penaties such as fines or imprisonment and to recommendation for dismissal, suspension of office, civil fine or criminal fine, etc. from supervisory authorities.

Financial institutions have a strong public character as they help develop nation's economy in terms of carrying out fund brokerage and authorization of payment functions. And as the general public, most depositors in financial institutions need more protection than commercial creditors do against a general business company. In this sense, integrity of financial institutions is a crucial key to development of a nation's economy because financial institutions should carry out a public function and protect financial consumers in contrast to general business companies. In this context, it is being pointed out that Directors should comply with stricter duty of care than directors of general business companies should do. However, there are opinions against such view. Considering that the public character of financial institutions is very critical and thus so pervasive in the entire national economy, it is advisable to impose higher level of in good faith duty of care upon Directors who perform their duties. In practice, it is desirable that Directors' in good faith duty of care is clarified in the relevant laws. And furthermore it is advisable that the provision of Directors' presumed knowledge of duty of care in determining whether Directors violate their duty of care is addressed in relevant laws and regulations.

In the cases relating to Directors' acts in violation of their duties, courts have enforced the provision of Occupational Embezzlement in Criminal Act (Article 356 in Criminal Act), excluding the provision of Crimes of Special Misappropriation by Directors in Commercial Act (Article 622 in Commercial Act). The reason is that any person who commits a crime of occupational embezzlement would be punished (i) by imprisonment for lifetime or not less than five years proportionately according to amount of profits gained by such person or (ii) by a criminal fine equivalent to the amount of profits gained by such person pursuant to the Article 3 of "Act on the Aggravated Punishment, etc. of Specific Economic Crimes" (hereinafter referred to as "Act on APSEC"), while a penalty imposed for crimes of special misappropriation is equal to the penalty imposed for crimes of occupational embezzlement in terms of sentence. Even though there is a provision relating to special misappropriation applicable to Director's act of embezzlement, the purpose of enacting the laws became disregarded by not applying such laws for the reason of convenience. To improve this, it is required that statutory sentence imposed for the case of special misappropriation should be increased more than the one imposed for the case of occupational embezzlement in addition to the enforcement of the Article 3 of Act on APSEC. In order to achieve a goal in an efficient manner in performing financial supervisory tasks, it is required that the following monetary sanctions should be reinforced: (i) introduction of criminal fine imposition system upon individuals, (ii) change of certain items of civil fine to criminal fine, (iii) expansion of the number of items imposed for criminal fines, (iv) increase in the amount of criminal and civil fines, etc.

Key words: directors of financial institutions, poor management, duty of care, liability for poor management in civil act, liability for poor management in criminal act, administrative sanction (penalty), public character of financial institution, depositor protection; Many financial institutions went though M&A or bankruptcy as a result of the financial crisis of 1997 in Korea. Directors' poor management was pointed out as one of reasons for the financial crisis. The concept of poor management of directors of financial institutions (hereinafter referred to as "Directors") has not been established in academic and practical fields. Given that 'insolvent financial institutions' are referred to as the financial institutions that are in a state of being unable to operate in a normal way or in a state of deficiency in terms of financial statement, as defined in the "Act on the Structural Improvement of the Financial Industry" and "Depositor Protection Act," the poor management of Directors can be defined as a management that has engendered the impairment of capital or bankruptcy crisis in financial institutions as a result of illegal act or unfair practice of Directors.

Directors have in good faith duty of care toward financial institutions as they are entrusted with business management from the financial institutions (Section 2 of Article 382 in Commercial Act). And Directors have a duty of loyalty toward the financial institutions in carrying out their duties for the financial institutions in accordance with any laws and by-laws (Section 3 of Article 382 in Commercial Act). Such duty of loyalty involves (i) a duty of confidentiality (Section 4 of Article 382 in Commercial Act), (ii) a duty of complying with prohibition from competition (Article 397 in Commercial Act), (iii) a duty of complying with prohibition from appropriation of company's business opportunity (Section 2 of Article 397 in Commercial Act), and (iv) a duty of complying with prohibition from self-dealing transaction with a company (Article 398 in Commercial Act). In other words, Directors should diligently carry out their business operations by doing their duty of care and by avoiding any conflict of interest with the financial institutions.

Directors should be legally liable for the harm or demage to financial institutions as defined in Commercial Act in the event that they cause any harm or damage to the financial institutions due to poor management (Section 1 of Article 399 in Commercial Act). If a company does not call Directors to account for any damage to the company due to their poor management, minority shareholders may file a representative suit against Directors on behalf of the company. Directors may be removed from office by a special resolution adopted at shareholders' meeting if they committed unfair acts in violation of any laws or by-laws. In case such removal of Directors is rejected at the shareholders' meeting, minority shareholders may request the court to remove the Director (Article 385 in Commercial Act). Directors should be liable for damages against a third party if they have neglected their duties intentionally or by gross negligence (Section 1 of Article 401 in Commercial Act). Furthermore, Directors should be liable for torts as defined in Civil Act if their act constitutes torts. In addition to civil damage, Directors may be subject to criminal penaties such as fines or imprisonment and to recommendation for dismissal, suspension of office, civil fine or criminal fine, etc. from supervisory authorities.

Financial institutions have a strong public character as they help develop nation's economy in terms of carrying out fund brokerage and authorization of payment functions. And as the general public, most depositors in financial institutions need more protection than commercial creditors do against a general business company. In this sense, integrity of financial institutions is a crucial key to development of a nation's economy because financial institutions should carry out a public function and protect financial consumers in contrast to general business companies. In this context, it is being pointed out that Directors should comply with stricter duty of care than directors of general business companies should do. However, there are opinions against such view. Considering that the public character of financial institutions is very critical and thus so pervasive in the entire national economy, it is advisable to impose higher level of in good faith duty of care upon Directors who perform their duties. In practice, it is desirable that Directors' in good faith duty of care is clarified in the relevant laws. And furthermore it is advisable that the provision of Directors' presumed knowledge of duty of care in determining whether Directors violate their duty of care is addressed in relevant laws and regulations.

In the cases relating to Directors' acts in violation of their duties, courts have enforced the provision of Occupational Embezzlement in Criminal Act (Article 356 in Criminal Act), excluding the provision of Crimes of Special Misappropriation by Directors in Commercial Act (Article 622 in Commercial Act). The reason is that any person who commits a crime of occupational embezzlement would be punished (i) by imprisonment for lifetime or not less than five years proportionately according to amount of profits gained by such person or (ii) by a criminal fine equivalent to the amount of profits gained by such person pursuant to the Article 3 of "Act on the Aggravated Punishment, etc. of Specific Economic Crimes" (hereinafter referred to as "Act on APSEC"), while a penalty imposed for crimes of special misappropriation is equal to the penalty imposed for crimes of occupational embezzlement in terms of sentence. Even though there is a provision relating to special misappropriation applicable to Director's act of embezzlement, the purpose of enacting the laws became disregarded by not applying such laws for the reason of convenience. To improve this, it is required that statutory sentence imposed for the case of special misappropriation should be increased more than the one imposed for the case of occupational embezzlement in addition to the enforcement of the Article 3 of Act on APSEC. In order to achieve a goal in an efficient manner in performing financial supervisory tasks, it is required that the following monetary sanctions should be reinforced: (i) introduction of criminal fine imposition system upon individuals, (ii) change of certain items of civil fine to criminal fine, (iii) expansion of the number of items imposed for criminal fines, (iv) increase in the amount of criminal and civil fines, etc.

Key words: directors of financial institutions, poor management, duty of care, liability for poor management in civil act, liability for poor management in criminal act, administrative sanction (penalty), public character of financial institution, depositor protection