금산법상 부실금융기관 공적소유화의 적법성과 합헌성 - 대법원 2006. 9. 8. 선고 2001다60323 판결 -

Abstract

In the global financial crisis in 2008, each country rescued the financial institutions in trouble by the injection of public funds. 10 years age Korea also experienced the financial crisis caused by the foreign exchange unbalance and resolved the financial institutions in trouble with provisions of public funds. All these were processed by special resolution schemes instead of general bankruptcy laws. United States have 'prompt corrective action' scheme for curing troubled financial institutions. England also introduced 'special resolution regime' by enacting 「Banking Act 2009」. Japan enacted 「Act of Rehabilitation of Financial System」 and 「Act of Prompt Stabilization of Financial System」each in 1998 in addition to prompt corrective action scheme. Korea also introduced prompt corrective action scheme by amending the 「Act of Restructuring of Financial Industry」 in 1998, which included the order of capital increase with reduction of existing shares, order of transfer of assets and liabilities and appointment of conservator by Financial Services Commission. In 1999, the Commission appointed conservator for Daehan Life Insurance Ltd. after finding that the liabilities of the Company far exceeded the assets. And the conservator, in place of board of directors, reduced all equity of existing shareholders to zero without any compensation and issued new shares to Deposit Insurance Corporation, making the Corporation the sole shareholder. As a result, the Company was in fact placed into public ownership by such a series of actions. The shareholders of the Company filed several lawsuits which did not succeed. This paper analyzes the legality and constitutionality of the actions by the Commission and conservator, especially whether the conservator had the power to reduce the equity of existing shareholders and issue new shares in place of board of directors of the Company. This paper concludes that the nationalization of financial institutions in default is permitted under the Constitution if it is necessary to preserve financial systems and to stabilize financial markets. However such an authority should be specifically and clearly provided by Congress. But the 「Act of Restructuring of Financial Industry」then in place did not provide such an authority or power to the Commission or the conservator. In addition this paper raises a doubt on whether the rescuing of the Company with such a large scale of public fund was proper. Financial institutions should also be liquidated in principle as other companies under market discipline. Rescuing such an institution with public fund should be limited for preserving overall financial systems and stabilizing financial markets.