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감독자에 대한 제재의 법 이론
Legal principles on the Liability of supervisors
서문식 ( Mun Sik Seo )
금융법연구 4권 1호 155-179(25pages)
UCI I410-ECN-0102-2012-320-001865370

Financial Supervisory Commission (FSA) and Financial Supervisory Service (FSS) of Korea have taken enforcement actions against employee, employer or financial companies who violate financial laws of Korea. This enforcement actions, such as suspension order, removal order, civil money penalty etc. apply not only to the offender but also to the supervisor of the offender. About 30 Acts regarding financial business regulation in Korea, however, have no statement at all about the liability of supervisor even though there are lots of legal issues that should be decided when FSA, FSS actually takes enforcement measures against supervisor. Until now, the actions have been taken according to the precedents without through studying on the liability of supervisor. This paper is to study theoretical base of the liability of supervisor and to propose the proper prima facie cases (i.e., elements) on the liability of supervisor. Liability of supervisor can be subdivided into civil, penal, and administrative liability. Administrative liability means the enforcement measures taken by FSA, FSS. The research conducted on all kind of supervisor liability in Korea and America found 5 types of supervisor liabilities; torts vicarious liability in Korea, torts vicarious liability in America, controlling person liability in Security Act of 1933, Securities Exchange Act of 1934 in America, liability based on failure to supervise in Securities Exchange Act of 1934 in America, and Responsible Corporate Officer doctrine in America. At first, it is studied whether each liability is based on personal culpability or vicarious liability. This distinction is very important in that most issues in supervisor liability are originated from this distinction. The research found that all vicarious liability is not the same, thus some vicarious liability can be exempted by some defenses while others cannot. Pure vicarious liability apply to torts vicarious liability in America, Responsible Corporate Officer doctrine. Defense attached vicarious liability apply to torts vicarious liability in Korea, controlling person liability in Security Act of 1933, Securities Exchange Act of 1934. Personal culpability apply to liability based on failure to supervise in Securities Exchange Act of 1934. Next, prima facie cases of each liability are analyzed. Through this I proposed "controlling person liability in Security Act of 1933" as a model for Korean financial supervisory authorities to execute enforcement actions against supervisor of offenders. This liability is based on personal culpability so that it can avoid dispute concerning constitutionality. In addition, the prima facie cases of this liability is so similar to current practice of FSA, FSS that they, I think, can be harmonized with current practice without difficulty.

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