미국 금융개혁법상 힘의 원천이론과 그 시사점에 관한 연구

Abstract

Last July of 2010, the Dodd-Frank Wall Street Reform and Consumer Protection Act (hereinafter Dodd-Frank Act) was legislated against shifting the responsibility for the cost incurred from the bankruptcy of financial conglomerates including their subsidiaries and affiliates such as banks and savings banks onto taxpayers in the United States. Moreover, the source of strength doctrine (hereinafter doctrine) under the Dodd-Frank Act was far reinforced to get rid of moral hazard or regulatory arbitrage. On the other hand, some scholars argue that the doctrine is the ability of a financial holding company to provide financial assistance to its subsidiary in case of financial distress, not the obligation of such a holding company. However, it is clear that this opinion conflicts with the purpose of the Dodd-Frank Act because taxpayers have to bear the cost originated from the bankruptcy of its subsidiaries in the event of without the financial assistance of such a holding company to its subsidiaries. Last 2000, the Korean Financial Holding Company Act (hereinafter FHCA) passed into law modeled on the Gramm-Leach-Bliley Act of 1999. Even though the FHCA introduced the doctrine, it did not definitely declare the doctrine a legal responsibility of a financial holding company as the financial source of strength to its subsidiaries. Of course, if there is a condition between the Korean financial regulator and a financial holding company under the article 3(3) of the FHCA prescribing the responsibility of a financial holding company to provide financial and managerial assistance to its subsidiaries, the financial holding company concerned has to assume the financial and managerial responsibility of its subsidiaries in emergencies. In particular, without such a condition, there is no way for the FHCA to inforce such a holding company to provide financial assistance in the bankruptcy of its subsidiaries. In this sense, the FHCA needs to be revised as soon as possible.