Research on Measures for Establishment of Compliance Officer System in Korea

김태명 한국전문경영인학회 2017 專門經營人硏究 Vol.20 No.3

The compliance officer system has long been established in advanced countries including the US, the UK, Germany, and Japan. Moreover, it is widely considered an essential part of the management in globally renowned companies such as Microsoft and GE. For instance, no listed company in the US shall make a public disclosure until its corporate disclosure materials are not signed by the compliance officer. In addition, companies with efficient compliance officer systems can get up to 60% relief on legal penalties even in case they are sentenced with fines from violation of relevant laws. Above all, due to the strong social emphasis on business ethics, companies in advanced countries are actively introducing compliance officer systems to promote their corporate image. However, according to the business report of Financial Supervisory Service issued in June 2016, only 183 companies out of 311 listed companies in Korea that are required to appoint compliance officers have compliance officer system in place, which is only 58.8% of companies supposed to have the system. The rest 41.2% of companies haven't appointed their compliance officers yet. To successfully establish the compliance officer system in Korea, it is necessary to take the following measures. Firstly, the number of companies that are required to introduce the system should be increased in phases. Practically, it would be difficult to expand the coverage in a short period of time. But the number of companies mandated to have the system in place must be increased gradually. Secondly, not only listed private companies but also public companies that have public influence or concerned to public interest should also be required to adopt the system. Next, the status of compliance officer must be secured and their qualification criteria need to be eased. Currently the work scope of compliance officers is redundant with that of auditors (Audit Committee). Moreover, the qualification doesn't need to be limited to those from certain vocational background, for instance lawyers. Also, there should be sanctions against companies that haven't appointed compliance officers yet. There is no statutory penalty to impose sanctions in case listed companies don't have a proper compliance officer system. To help the compliance officer system take root in Korea, it is essential to have more practical and legally binding measures such as sanctions. The fifth measure is giving incentives to companies that appoint compliance officers. Measures including tax benefits, exemption or reduction of criminal punishment and fines shall be considered. The sixth is computerization of most compliance officer tasks. That will enable compliance officers to focus on their core tasks, helping them to perform their work with higher efficiency in a more strategic manner. Seventh, the compliance officer system stated in the Korean Commercial Act and the system in specified in other finance related laws shall be integrated into one to ensure consistency. Finally, the role and work scope pertaining to internal controls shall be clearly distinguished and the work independence must be guaranteed. As this research places a strong focus on suggesting efficient measures to establish the compliance officer system in Korea, empirical analysis is not included herein.

Research on Measures for Establishment of Compliance Officer System in Korea

Tae-Myung Kim 한국전문경영인학회 2017 專門經營人硏究 Vol.20 No.3

준법지원인제도는 미국, 영국, 독일, 일본 등 외국에서는 이미 일반화된 지 오래고, 마이크로소프트, GE 등 세계적인 기업에서 필수적인 제도로 정착되어 있다. 미국의 상장회사들은 기업공시 자료에 준법지원인(compliance officer)의 서명이 없으면 공시 자체가 어렵다. 또한 법위반 행위로 벌금형을 부과받을 때도 효과적인 준법지원제도가 마련되어 있는 회사는 법정형의 60%까지 감경받고 있다. 무엇보다 기업윤리를 중시하는 사회분위기 덕분에 기업들은 앞다투어 준법지원인제도를 도입하여 기업 이미지 제고에 활용하고 있다. 그러나 우리나라에서는 금융감독원의 2016년 6월 사업보고서에 따르면 준법지원인 선임 대상 311개 상장사 중 58.8%인 183개 회사만이 준법지원인을 두고 있으며, 41.2%에 해당하는 128개 회사는 아직까지 준법지원인을 선임하지 않은 것으로 나타났다. 준법지원인제도를 올바르게 정착시키기 위해서는 다음과 같은 방안이 모색되어야 할 것이다. 첫째, 준법지원인제도 도입 대상 회사를 단계적으로 확대하여야 한다. 현실적으로 갑작스레 적용 대상 회사를 확대하는 것은 어렵더라도 단계적으로 준법지원인 선임 대상 회사를 늘려 나가야 한다. 둘째, 상장회사와 더불어 공공성이 큰 공기업도 준법지원인제 도입 대상에 포함시켜야 한다. 셋째, 준법지원인의 지위를 명확히 하고, 그 자격기준을 완화할 필요가 있다. 준법 지원인과 감사(감사위원회)의 업무범위가 중복되고 있다. 또한 자격을 반드시 특정 직역(변호사)에 국한시킬 필요는 없다. 넷째, 준법지원인 미선임기업에 대한 제재가 필요하다. 상장회사들이 이를 선임하지 않은 경우에 제재를 가하는 처벌 규정이 없는 상태이다. 준법지원인제도를 정착시키기 위해서는 현실적으로 제재와 같은 의무화를 위한 방안이 필요하다. 다섯째, 준법지원인 선임기업에 대한 인센티브 부여가 필요하다. 준법지원인 도입 기업에 대한 세제 혜택, 형사처벌 감면, 과징금 감면 등의 방안이 모색되어야 한다. 여섯째, 준법지원인의 업무 대부분을 전산화 한다면, 준법지원인은 본질적인 업무에 집중할 수 있어 보다 효율적인 업무 수행을 통하여 전략적 준법지원업무를 수행 할 수 있을 것이다. 일곱째, 상법상 준법지원인제도와 금융관련법상 준법감시인제도를 단일법으로 통합할 필요가 있다. 여덟째, 내부통제업무와 관련하여 직무가 명확히 구분되고 업무의 독립성이 보장되어야 한다. 본 연구는 준법지원인제도의 효율적인 정착방안을 제시하는데 주안점을 두고 있기 때문에 실증적 분석은 제외하였다. The compliance officer system has long been established in advanced countries including the US, the UK, Germany, and Japan. Moreover, it is widely considered an essential part of the management in globally renowned companies such as Microsoft and GE. For instance, no listed company in the US shall make a public disclosure until its corporate disclosure materials are not signed by the compliance officer. In addition, companies with efficient compliance officer systems can get up to 60% relief on legal penalties even in case they are sentenced with fines from violation of relevant laws. Above all, due to the strong social emphasis on business ethics, companies in advanced countries are actively introducing compliance officer systems to promote their corporate image. However, according to the business report of Financial Supervisory Service issued in June 2016, only 183 companies out of 311 listed companies in Korea that are required to appoint compliance officers have compliance officer system in place, which is only 58.8% of companies supposed to have the system. The rest 41.2% of companies haven't appointed their compliance officers yet. To successfully establish the compliance officer system in Korea, it is necessary to take the following measures. Firstly, the number of companies that are required to introduce the system should be increased in phases. Practically, it would be difficult to expand the coverage in a short period of time. But the number of companies mandated to have the system in place must be increased gradually. Secondly, not only listed private companies but also public companies that have public influence or concerned to public interest should also be required to adopt the system. Next, the status of compliance officer must be secured and their qualification criteria need to be eased. Currently the work scope of compliance officers is redundant with that of auditors (Audit Committee). Moreover, the qualification doesn't need to be limited to those from certain vocational background, for instance lawyers. Also, there should be sanctions against companies that haven't appointed compliance officers yet. There is no statutory penalty to impose sanctions in case listed companies don't have a proper compliance officer system. To help the compliance officer system take root in Korea, it is essential to have more practical and legally binding measures such as sanctions. The fifth measure is giving incentives to companies that appoint compliance officers. Measures including tax benefits, exemption or reduction of criminal punishment and fines shall be considered. The sixth is computerization of most compliance officer tasks. That will enable compliance officers to focus on their core tasks, helping them to perform their work with higher efficiency in a more strategic manner. Seventh, the compliance officer system stated in the Korean Commercial Act and the system in specified in other finance related laws shall be integrated into one to ensure consistency. Finally, the role and work scope pertaining to internal controls shall be clearly distinguished and the work independence must be guaranteed. As this research places a strong focus on suggesting efficient measures to establish the compliance officer system in Korea, empirical analysis is not included herein.

상법상 준법지원인제도의 문제와 해결

주기종(Ju, Gi-Jong) 한국법학회 2012 법학연구 Vol.48 No.-

준법지원인제도는 2011년 4월에 개정되어 2012년 4월부터 시행되어 일정 규모 이상의 상장회사는 준법지원인을 의무적으로 두어야 한다. 준법지원인제도를 도입하면서 준법지원인의 활동에 대한 독립성 및 실효성의 확보의 필요성, 책임부분의 미흡, 준법감시제도 등 다른 내부통제제도와의 불균형으로 인한 문제 제기 등 제도보완의 필요성이 제기되어 왔다. 그리하여 이 연구는 상법상의 준법지원인제도의 내용을 살피면서 그 실효성을 제고하고 위해 개선되어야 할 문제점을 찾아보고 이에 대한 해결 방안을 모색하고자 하는 논문이다. 준법지원인의 법적지위와 관련하여 자격요건의 강화 및 변호사인 준법지원인에 대한 재교육을 통한 질 향상의 필요성, 준법지원인의 해임에 따른 손해배상청구제도 마련, 준법지원인의 임기 및 겸직제한, 준법지원인제도의 임의적인 선택제로의 전환, 준법지원인제도와 준법감시인제도와의 기능적 중복 관계, 준법지원인제도의 활성화를 위한 인센티브의 확대 및 제도적 보완책, 준법지원인의 독립성 확보 방안 등 개선할 점을 제시하였으며, 상법개정을 대비하여 더욱 면밀한 검토를 통하여 준법지원인제도에 관한 문제점을 최소화할 수 있도록 계속적인 연구가 필요하다는 것을 논하였다. Compliance officer system was revised on April 2011 and has been enforced since April 2012. And under this system, sizable listed companies should have compliance officers obligatorily. As introducing compliance officer system, the needs to supplement the system such as the necessity securing independence and effectiveness to the activities of compliance officer system, insufficiency of charging parts, problem suggestion due to the imbalance with other internal control system including compliance monitoring system have been suggested. Therefore, the purpose of this study is to find out the problems to be improved for raising effectiveness by searching compliance officer system in commercial law and to search the solution to this. We have suggested the improvements such as the necessity of quality improvement through reinforcing of qualification in relevant with legal position of compliance officer and re-training to compliance officer (lawyer), the preparation of compensation claim system against the dismissal of compliance officer, the restriction of tenure and additional job of compliance officer, the transition of compliance officer system into voluntary selection system, and the functional repetitive relation between compliance officer system and compliance monitoring officer system, the extended incentive and systematic supplements for vitalization of compliance officer system, and the plan to secure the independence of compliance officer. We also discussed that the continuous study is needed to minimize the problems about compliance officer system through more close review by preparing to the revision of commercial law.

A Plan for Efficient Operation of Internal Control System in Korean Financial Institutions: Focus on Compliance Officer System

박형근,이재춘 대한경영학회 2015 大韓經營學會誌 Vol.28 No.6

A compliance officer was introduced as a standing position of financial institutions after the Asian Financial Crisis to improve corporate governance and transparency of business management. As the Banking Act was amended on January 21, 2000, an article on internal controls, etc. was newly established and it mandated banks to assign compliance officers. A compliance officer is in charge of establishing a compliance system that ensures employees of financial institutions abide by relevant laws and regulations in performing their duties and operating/monitoring the system. As such, a compliance officer should monitor whether the internal control standards are observed and investigate and report any violation of the internal control standards to the standing auditors and the Audit Committee, etc. For efficient operation of the compliance officer system of the financial institutions in Korea, the following measures should be sought. First, compliance culture needs to be established where employees have strong awareness of the importance of internal control and strictly comply with it. Secondly, responsibility of the top management for supervising internal control problems, if any, shall be strengthened. Thirdly, the financial authorities should set an example for strong compliance. Next, clear distinction between internal control and compliance should be made. Then the role and business scope of compliance officers should be adjusted. The sixth is to improve awareness of the top management, and the seventh is enhancement of the status of compliance officers. The eighth is granting appropriate position and authority to compliance officers. Finally, the ninth is to redefining the role of compliance officer and the Audit Committee (auditors). This study has two main implications. Firstly, the efficient operational plan for compliance officer system in financial institutions suggested in the paper would be used as a valuable policy material to strengthen and solidify the internal control systems in Korea. Secondly, establishment of compliance culture, one of factors for efficient operation of compliance officer system, will contribute to building an organizational culture of compliance that makes compliance ethics and compliance culture fully settled in terms of practical aspects of the compliance officer system in financial institutions. This study will limit its research scope to suggestion of measures for efficient operation of the compliance officer systems of the financial institutions in Korea. Therefore, a following empirical study shall be conducted on the effectiveness of the compliance officer system in Korean financial institutions.

내부통제와 준법지원인제도

김강수(Kang Soo Kim) 중앙법학회 2011 中央法學 Vol.13 No.2

Companies can develop serious regulatory and 1ega1 prob1ems when they have breakdowns in interna1 contro1s. The pain of non-compliance and recent high profile compliance failures have caused companies to budget more money to proactive1y address those types of prob1ems. Compliance programs are a species of internal controls. typically a tai10red set of devices to meet externally- imposed non-financial mandates. A study on the prob1ems and solutions of internal contro1 system and compliance officer is as follows. First. with regard to the scope of interna1 contro1 system and compliance`s ro1e. interna1 control system can be devide financial and non-financia1 controls, to manage risk and compliance can be comprised in non-financia1 control. Second, efficient compliance program can be secured through the compliance officer`s independence and expertise. an objective standard for the ro1e of compliance officer and an audit or audit committee should be showed. Third, compliance must have the position and situation who can cope with externa1 or interna1 pressure. it is necessary to make adopt compliance system by compu1sion. but it is desirable to use the way which the corporation established compliance program can be remitted a fine. This article makes a study on the propriety of introduction of ``internal control system`` and ``compliance officer``. The detailed assertions of the article are as follows. First, in regard of the compliance officer, the officer had better be separated from the legal and audit departments, and the officer needs to be under control by a board instead of an internal auditor. Besides, the compliance officer is recommended to be separated from a person directly in charge of the compliance work. In the case, the paper suggests that there be no qualification on the compliance officer, but the person in charge of the compliance affairs be a lawyer including a foreign lawyer. Second, with regard to the scope of the system and a legal basis, the scope of the internal control system for a listed company needs to be limited to the compliance of laws and regulations excluding risk management operation. Also, the internal control system had better be obligated not by a statute but by a more flexible rule of Korea Exchange. Third, the study shows how much important the incentives are for more adoption of the compliance system by listed companies by introducing good examples of other countries.

준법통제와 준법지원인에 대한 고찰

최정식(Choi Jung-Sik) 숭실대학교 법학연구소 2012 法學論叢 Vol.27 No.-

Under the Revised Commercial Law, Compliance is a system of policy and controls that Corporation adopt of law and to assure external authorities that they are taking steps to deter violations of applicable laws, regulations, internal rules and codes of conducts. The internal compliance system and compliance officer have been in force for financial Corporation in Korea since 2001. It is reasonable to be enacted compliance system to listed company. It argues that compliance system is different from internal compliance system. The scope of compliance system needs to be limited to the compliance of laws and regulations excluding risk management and financial control. But the scope of internal compliance system covers compliance of laws and regulations, risk management and financial controls. Efficient compliance system can be secured through compliance officer's protection and independency. There are some problems on compliance officer. The range of compliance officer is not determined on law. lawyer and professor of five or more years of experience in that area is qualified for compliance officer. The another requirement is the person who has sufficient knowledge and experience. I think that the requirement person who has experience of ten or more years in this special part is proper. The another argument is the range of the listed company to introduce the compliance system obligatorily. In order to relax company's heavy burden, various incentives are afforded to the company with compliance system such as exemption and reduction of punishment and punitive damage.

준법지원인 제도에 관한 법적 고찰

최완진 한국경영법률학회 2012 經營法律 Vol.22 No.4

The Korean Commercial Code, as amended in April 2011, established a compliance control system applicable to listed companies over a certain size, and requires the appointment of a compliance officer to implement the compliance control system. In response, many companies have argued that there are currently audit functions already in place which overlap with the compliance control and compliance officer systems, and that the implementation of the new systems increases the economic burden on the relevant companies. On the other hand, academics and attorney organization have generally welcomed the new systems, insisting that they will foster corporate compliance and management transparency, which will be beneficial to these companies. Sharp conflicts between the two sides have become a big issue. In my opinion, the compliance control and the compliance officer systems will function to benefit both the relevant companies and their shareholders, because these new systems (i) have distinct functions and roles beyond existing audit systems, (ii) fill gaps commonly existing in the internal controls of companies, and (iii) facilitate the control of management via monitoring and increased transparency. In this thesis, after having reviewed outlines and the pertinent provisions of the compliance control and compliance officer systems introduced by the amended Korean Commercial Code, as well as legislation and the compliance systems in other countries, I will discuss issues and problems associated with the Korean compliance control and compliance officer systems, and also offer recommendations thereon.

상장법인에 대한 내부통제와 준법지원인 제도의 도입타당성 고찰

성희활(Seong Hye Hwal) 인하대학교 법학연구소 2009 法學硏究 Vol.12 No.2

현재 시행중인 금융회사의 내부통제 제도와 이에 대한 운영책임자인 준법지원인 제도를 기업, 특히 상장법인에도 도입하자는 의견이 꾸준히 제기되고 있다. 이 논문은 상장법인들에게 내부통제, 정확히는 준법관리시스템과 이를 담당하는 준법지원인 제도의 도입 타당성을 검토하여 그 필요성을 역설하고 바람직한 도입방안을 제시하였다. 먼저 제도 도입의 전제로서 기업은 금융회사와 속성이 다르므로 차별화된 제도 도입이 요망된다는 점을 지적하였다. 제도의 주요 내용을 보면, 도입근거 등과 관련하여 내부통제제도의 범위를 준법관리로 제한할 것과, 엄격한 법적 의무화 보다는 거래소 상장규정을 통한 완화된 의무화를 고려해 볼 것과, 그리고 기업 규모를 감안한 비례적 도입을 제시하였다. 다음으로 준법지원인 제도의 내용으로는, 법무실 및 감사조직과 분리하고 경영진의 의사결정을 적극 지원할 수 있도록 보고라인을 이사회로 할 것과, 준법지원인의 자격을 준법지원업무 담당자와는 분리하여 준법지원인의 자격은 기업 자율에 맡기되 업무 담당자는 변호사(외국변호사 포함)로 자격을 제한할 것을 권고하였다. 무엇보다도 내부통제시스템의 성공적 정착의 핵심 요건으로 형사적, 행정적, 민사적 인센티브가 가장 중요하므로 다양한 인센티브를 제공하여 가급적 상장법인들이 자발적으로 내부통제를 도입하도록 배려해 줄 것을 요청하였다. 마지막으로 법률교육이나 변호사 양성에 있어서 기업의 수요를 감안한 전문교육의 확대가 중요하다는 점도 지적하였다. This article makes a study on the propriety of introduction of ‘internal control system’ and ‘compliance officer’ to listed companies. The internal control system and the compliance officer have been in force for financial companies in Korea since 2001. To begin with, the study points out as a basic principle that a corporation needs a different system from that of a financial company since they have different intrinsic attributes. The detailed assertions of the article are as follows. First, with regard to the scope of the system and a legal basis, the scope of the internal control system for a listed company needs to be limited to the compliance of laws and regulations excluding risk management operation. Also, the internal control system had better be obligated not by a statute but by a more flexible rule of Korea Exchange. In addition, the system needs to be introduced in proportion to the size of companies. Second, in regard of the compliance officer, the officer had better be separated from the legal and audit departments, and the officer needs to be under control by a board instead of an internal auditor. Besides, the compliance officer is recommended to be separated from a person directly in charge of the compliance work. In the case, the paper suggests that there be no qualification on the compliance officer, but the person in charge of the compliance affairs be a lawyer including a foreign lawyer. Next, the study shows how much important the incentives are for more adoption of the compliance system by listed companies by introducing good examples of other countries. The incentives may be provided from the criminal, administrative and civil sides. Finally, it is emphasized that more specific and professional education considering the needs of companies are very important for training a qualified lawyer for the compliance work.

A Study on Compliance Officer System in Korean Financial Institutions

박형근,이재춘 한국전문경영인학회 2014 專門經營人硏究 Vol.17 No.4

A compliance officer was introduced as a standing position of financial institutions after the Asian Financial Crisis to improve corporate governance and enhance transparency of business management. As the Banking Act was amended on January 21, 2000, an article on internal control standards was newly established and it mandated banks to appoint compliance officers. It has been about 15 years since the compliance officer system was introduced in Korea. Now the system has almost settled and the Korean Commercial Act also introduced a compliance assistant system in listed companies. Therefore, to successfully settle the compliance officer system in place, the following improvement plans shall be sought. Above all, the management as well as CEO should take a new perspective for significance of internal control. Secondly, the status of compliance officer has to be raised in order for compliance (control) business to be performed effectively. Thirdly, independence of compliance officers should be guaranteed. The fourth is, a efficient link between business of compliance officers and that of audit committee. Lastly, a compliance officer shall be granted with proper position and authority to understand the company’s business thoroughly because he/she is responsible for compliance with laws and regulations in the company’s general business performance. If the management, executives, and employees of financial institutions voluntarily and actively establish, operate and settle an internal system, it is expected to make significant contribution to improving internal/external credit rating and eliminating risks.

준법경영의 확립을 위한 준법지원인제도의 문제점 및 개선방안 - 준법지원인의 법적지위를 중심으로 -

정준우 한국상사법학회 2015 商事法硏究 Vol.34 No.2

The Commercial Act amended 2011 has adapted the compliance officer system for the compliance management. A listed company, therefore, determined by Presidential Decree in light of the scale of assets, etc. shall establish guidelines and procedures that their employees and directors must observe in order to abide by Acts and subordinate statutes and make their management appropriate when the employees and directors perform their duties(§542-13(1)). A listed company shall have one or more persons responsible for the work on abiding by the compliance guidelines (hereinafter referred to as “compliance officer")(§542-13(2)), in order to appoint and remove a compliance officer, a listed company shall obtain a resolution of the board of directors(§542-13(4)). And a compliance officer shall check whether the compliance guidelines are complied with and shall report the outcomes thereof to the board of directors(§542-13(3)). The term of a compliance officer shall be three years, and he/she shall work full time(§542-13(6)). The provisions of this Act shall apply with respect to a compliance officer, as long as no specific provisions to the contrary exist in other Acts: Provided, That the provisions of paragraph (6) shall preferentially apply in cases where the term of a compliance officer under other Act is shorter than the term set forth in paragraph (6)(§542-13(11)). And no listed company shall unfairly disadvantage a person who was a compliance officer in personnel matters for reasons related to his/her performance of duties(§542-13(10)). There, however, are many legal problems in the provisions relating to the legal status of compliance officer under the Commercial Act. In this paper, thus, I have investigated the problems implicated these provisions relating to the legal status of compliance officer, and I have proposed the improving methods for settlement of such legal problems. The top priority for improving the compliance management culture is firming up the legal status of compliance officer. The second, that should be reviewed prospectively for the adjunct of compliance officer, if it can help with compliance management without compromising the independence of compliance officer. The third, the provisions relating to dismissal of compliance officer should be placed in the Commercial Act. The forth, it is necessary to be included the result of election and dismissal and job evaluation results of compliance officer in the public announcement, should strengthen the dismissal requirements of compliance officer. The fifth, to perform the supporting task of compliance management, the compliance officer must build institutions and other organic business cooperation. Finally, when the compliance officer report the result of their task for compliance management to the board of directors, that must be submitted to auditors at the same time, and the auditor must also notify the compliance officer when reporting audit results to the board of directors or the shareholders' meeting.