금산분리 규제로서 공정거래법상 금융·보험회사 의결권 제한 규제에 대한 검토 - 케이큐브홀딩스 사건을 중심으로 -

Abstract

This study aims to examine the problems and propose improvements to the regulations restricting voting rights of domestic subsidiaries of financial and insurance companies, which are a form of regulation to prevent excessive concentration of economic power under the Monopoly Regulation and Fair Trade Act (MRFTA). The regulation is based on the principle of financial-industrial separation and is designed to prevent large conglomerates from forming, maintaining, or exacerbating excessive concentration. This is a regulation that can assume the purpose specific to the MRFTA. The key issues in the K Cube Holdings case, which provided the impetus for this study, were what the purpose of this regulation could be and whether the scope of domestic financial and insurance companies referred to here could be interpreted in a restrictive manner accordingly. In the K Cube Holdings ruling in December 2023, the Seoul High Court presented a groundbreaking legal principle that distinguishes between financial companies that manage other people’s funds and those that manage their own funds. The two main issues in this case are, first, the concept and scope of the financial industry under the MRFTA, and second, the concept and scope of financial companies referred to in the voting rights restriction provisions of the MRFTA. Regarding the second issue, the Seoul High Court held that the financial industry referred to in the voting rights restriction system under Article 25(1) of the MRFTA is narrowly interpreted as meaning only industrial activities that involve managing other people’s funds, i.e., depositors’ funds. This interpretation by the Seoul High Court is in line with the principle of interpretation based on the relationship between the purpose and means of the regulation, and the principle of interpretation considering the relationship between the means of preventing excessive concentration of economic power. In order to apply regulations to realize the principle of financial-industrial separation, it is necessary to distinguish between the financial and non-financial sectors. To this end, it is necessary to draw a boundary based on the negative effects of the combination of industrial and financial capital and to grasp the definition of finance and the characteristics of the financial industry. This study points out the implications of the K Cube Holdings ruling and the normative problems of the regulations governing financial and insurance businesses subject to voting rights restrictions, and proposes legislative improvements.