금융규제에 대한 법정책학적 고찰

Abstract

This article reviewed and analyzed a few key issues of financial regulation in the view of legal policy study. A study on legal policy or "law and policy" analyzes current legal systems and suggests a desirable one for betterment of the systems. My discussion focused on the three fundamental issues in financial regulation, especially among other things, that are (1) financial supervision system, (2) separation of banking and commerce, and (3) universal banking or separation of commercial banking and investment banking. For the issues regarding to the financial supervision system, my study first suggested that policy making and supervision be separated for checks and balances. I, however, expressed an opposite view toward the so-called "Twin-peaks model" claiming the separation of prudential regulation and business conduct regulation. The main reasons for the opposing position are the relation of both of the regulations can be complementary regardless of the inherent conflict of the interests between them, and the separation of the two functions can cause a serious problem for overall coping with systematic risk in the financial market. Next, for the issue of separation of banking and commerce, there have been persuasive arguments for easement of the strict regulation keeping the arm's-length relation between the two industries in order to strengthen the competitiveness of the financial industry and to fix the adverse effects of government-controlling financing. I disagreed to the opinions, since the international standard seems to keep the separation of the two, and the industrial attributes of banking and commerce are intrinsically different. Third, for the issue of whether to permit universal banking or not, my article argued for the current limited universal banking system that permits for a commercial bank to hold an investment bank (a securities firm) as a subsidiary. The whole universal banking system which allows commercial banking and investment banking be performed in a single entity has been historically proved very dangerous to the systemic risks of individual banks and systematic risks of the overall market and industry. In addition, the synergy effect which the universal banking system pursues for may be acquired by the current financial holding company system. In conclusion, the separation of commercial banking and investment banking should be continued as it is now.