금융감독당국이 금융기관 임직원에 대한 제재 조치를 결정하는데 있어서 공정성, 투명성, 신뢰성을 확보하는 것이 중요하다. 제재 대상자의 부당한 권리 침해를 막기 위해서이다. 우리나라의 경우는 그러한 제도적 장치가 부족하다. 제재 기준과 절차에 관한 사항이 법률이 아닌 감독규정(規程)에 규정되어 있어서 감독당국의 자의적인 운영이 가능하다. 제재 대상자의 방어권을 보장해줄 수 있는 청문(hearing) 제도가 잘 갖추어져 있지 않다. 이 글은 미국의 금융기관 임직원 제재 절차 제도를 고찰함으로써 우리나라에 대한 시사점을 알아보고자 하는 것이다. 시사점은 다음과 같다. 첫째, 미국은 제재 종류, 기준, 절차 등에 관한 사항이 법률에 명확히 규정되어 있다. 둘째, 청문 제도가 잘 정비되어 있으며, 특히 독립성과 전문성을 갖춘 ‘행정청문주재관’(ALJ)이 청문 절차를 주재함으로써 제재 절차의 공정성과 신뢰성을 확보하고 있다. 셋째, 합의(settlement) 제도를 운영함으로써 제재 절차의 효율성을 도모하고 있다. 우리나라도 이와 같은 합리적인 법제를 도입함으로써 제재 대상자의 권리 보호를 위한 장치를 시급히 마련하여야 한다.

In taking enforcement actions against officers and employees of financial institutions, it is essential to procure the "fairness, reliability and transparency" in the process, in order to fully protect the rights of such officers and employees. In this connection, however, it is assessed that Korea lacks such principles. In Korea, the procedures for enforcement actions are currently prescribed in the supervision regulation level enacted by a regulator itself, rather than the law level. Further, the system and procedures for hearings in the process are not well established and operated. In contrast, the United States of America is operating the advanced and well-organized system in terms of protecting the rights of officers and employees. The procedures and standards for enforcement actions are provided in the law level, or the Federal Deposit Insurance Act. Hearings, where an 'administrative law judge,' ("ALJ"), a legal expert being independent from the head of a regulator, is presiding, are permitted, if they are requested. The ALJ has authority to rule on offers of proof or receive relevant evidences, and to take depositions or have depositions taken. The ALJ then submits a recommended or initial decision to the regulatory agency, which then becomes the decision of the agency without further proceedings, unless there is an appeal to, or review on motion of, the agency within time provided by the rules. The settlement system is also operated so that the ALJ arranges for holding conferences for the settlement. Based on the review of the U. S. system, this article suggests the following: first, the new law regarding enforcement actions should be immediately enacted; second, hearings should be applied to all cases for taking enforcement actions, and an independent administrative law judge should preside over the hearings; and third, the settlement system needs to be introduced.

In taking enforcement actions against officers and employees of financial institutions, it is essential to procure the "fairness, reliability and transparency" in the process, in order to fully protect the rights of such officers and employees. In this connection, however, it is assessed that Korea lacks such principles. In Korea, the procedures for enforcement actions are currently prescribed in the supervision regulation level enacted by a regulator itself, rather than the law level. Further, the system and procedures for hearings in the process are not well established and operated. In contrast, the United States of America is operating the advanced and well-organized system in terms of protecting the rights of officers and employees. The procedures and standards for enforcement actions are provided in the law level, or the Federal Deposit Insurance Act. Hearings, where an 'administrative law judge,' ("ALJ"), a legal expert being independent from the head of a regulator, is presiding, are permitted, if they are requested. The ALJ has authority to rule on offers of proof or receive relevant evidences, and to take depositions or have depositions taken. The ALJ then submits a recommended or initial decision to the regulatory agency, which then becomes the decision of the agency without further proceedings, unless there is an appeal to, or review on motion of, the agency within time provided by the rules. The settlement system is also operated so that the ALJ arranges for holding conferences for the settlement. Based on the review of the U. S. system, this article suggests the following: first, the new law regarding enforcement actions should be immediately enacted; second, hearings should be applied to all cases for taking enforcement actions, and an independent administrative law judge should preside over the hearings; and third, the settlement system needs to be introduced.

Enforcement Actions, Hearings, Administrative Law Judge, Settlement, Cease and Desist Order, Civil Money Penalty