S-Space College of Law/Law School (법과대학/대학원) The Law Research Institute (법학연구소) 법학 법학 Volume 43, Number 1/4 (2002)
Supervisor Liability in the US Securities Law
- Issue Date
- 서울대학교 법학연구소
- 법학, Vol.43 No.1, pp. 436-464
- 증권거래법의 모국은 미국; 연방 증권법상의 감독자책임; 경영자의 감독자책임; 감독소홀; controlling person liability; Aiding and Abetting; respondeat superior
- There exist diverse differences between the US and Korean securities regulation even though the latter modelled after the former. One of the differences is the supervisory responsibility, which is strictly claimed in the US securities law compared to other countries. As a result, the supervisors in a corporation exert themselves to prevent their employees from violating laws and regulations. In particular, the supervisory responsibility in the federal securities takes the largest part of the legal environment to control the business activities of the securities firms and their directors/employees. The supervisory responsibility depends on the supervisors' prior measures to prevent the recurrence of illegal activities The responsibility applies to the CEOs as well as the corporations. However, as the supervisory responsibility is a strict liability, the supervisors are allowed to exempt themselves from the supervisory responsibility by proving that they performed their duty. In the US, the supervisory responsibility is used by the regulators and the courts as a method to encourage the corporations and CEOs to prevent activities in breach of the securities law. In this way, the supervisory responsibility can be an essential component to cultivate and support internal compliance system and compliance culture. By using the supervisory responsibility as a regulatory measure, the SEC can concentrate its limited regulatory resources on the corporations and CEOs to make changes in their behaviour, and in turn, encourage them to precent illegal activities in their corporations. From the standpoint of the securities regulatory policy, the supervisory responsibility can provide various important insights for us when adjusting the securities regulatory system in Korea. In spite of various efforts of securities regulators, securities crimes are still very popular in Korean securities markets. The CEOs of most Korean securities firms have less interest in finding and preventing illegal activities of their directors and/or employees. They often overlook such activities for their corporate profits. These practices in aggregate jeopardize the efficiency and effectiveness of the securities markets by either inflicting losses to the customers or reducing investors' confidence on market integrity. This Article examines the role of the supervisory responsibility as a core regulatory measure to back up the industry's voluntary efforts for fair and transparent business in the US. This Article also shows that the supervisory responsibility can be of assistance for us to renew the securities regulatory system in Korea.