우리나라 금융지주회사법의 규제법리에 관한 비교법적 연구
A Comparative Study on the Regulatory Principle in the Korean Financial Holding Company Act
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Recently, many countries, such as the United States, Korea and western European countries, have tried to convert their banking or (and) financial institutions into huge enterprises (e.g., bank or financial holding company) and get the competitive benefits of their banking or financial industries against other countries through the economies of scope and scale by means of such a conversion. In this sense, Korea has followed such a global trend by enacting the Korean Financial Holding Company Act (hereinafter FHCA). However, there are several drawbacks in the FHCA, such as definitional and requirement problems of the Source of Strength Doctrine (hereinafter SSD) and the Prompt Corrective Action (hereinafter PCA), and the non-adoption of the Cross-Guaranteed Provision (hereinafter CGP). Because of those problems, the FHCA through a financial holding company is not enough to facilitate the efficacy to improve the competitive benefits of Korea’s banking or (and) financial industries over other countries. Therefore, there needs a good solution and the author considers the good solution as a consolidation- centered regulation (hereinafter CCR) including the SSD, the PCA and CGP. In the context of the article the CCR refers to the regulation that treats a bank or financial holding company and its subsidiary (or subsidiaries) as a single entity to prevent the moral hazard caused under the roof. The CCR is generally specified by the SSD, the PCA, CGP and so on. Even though the CCR is a good regulation, it needs to be assisted by other regulations (e.g., institutional or entity regulation, functional regulation and separation-centered regulation) because it is not also a perfect regulation. Because the author examines the legal aspects of the SSD, PCA and CGP as specified tools of the CCR focused generally on the United States’ legal system, he hopes that the review of the European legal system focused on the Basel II and Directives follow to this article to produce perfect results of a regulatory principle. The author has a plan to write a paper on the combined and developed regulatory principle including the United States and the western European countries.
Abstract
Recently, many countries, such as the United States, Korea and western European countries, have tried to convert their banking or (and) financial institutions into huge enterprises (e.g., bank or financial holding company) and get the competitive benefits of their banking or financial industries against other countries through the economies of scope and scale by means of such a conversion. In this sense, Korea has followed such a global trend by enacting the Korean Financial Holding Company Act (hereinafter FHCA). However, there are several drawbacks in the FHCA, such as definitional and requirement problems of the Source of Strength Doctrine (hereinafter SSD) and the Prompt Corrective Action (hereinafter PCA), and the non-adoption of the Cross-Guaranteed Provision (hereinafter CGP). Because of those problems, the FHCA through a financial holding company is not enough to facilitate the efficacy to improve the competitive benefits of Korea’s banking or (and) financial industries over other countries. Therefore, there needs a good solution and the author considers the good solution as a consolidation- centered regulation (hereinafter CCR) including the SSD, the PCA and CGP. In the context of the article the CCR refers to the regulation that treats a bank or financial holding company and its subsidiary (or subsidiaries) as a single entity to prevent the moral hazard caused under the roof. The CCR is generally specified by the SSD, the PCA, CGP and so on. Even though the CCR is a good regulation, it needs to be assisted by other regulations (e.g., institutional or entity regulation, functional regulation and separation-centered regulation) because it is not also a perfect regulation. Because the author examines the legal aspects of the SSD, PCA and CGP as specified tools of the CCR focused generally on the United States’ legal system, he hopes that the review of the European legal system focused on the Basel II and Directives follow to this article to produce perfect results of a regulatory principle. The author has a plan to write a paper on the combined and developed regulatory principle including the United States and the western European countries.
참고문헌 (52)
- 권영성, "헌법학원론" (2006), 법문사
- 김대연, "종속회사의 파산과 지배회사의 책임-종속회사 채권자의 보호방안을 중심으로", 상사법연구, 23(3) (2004), 한국상사법학회
- 김문재, "금융지주회사법에 대한 분석과 제언", 비교사법, 8(1) (2001), 한국비교사법학회
- 김용재, "겸영주의와 금융그룹의 설립방식에 관한 제언, 금융거래법강의 Ⅱ" (2001), 법문사
- 김철수, "헌법학신론" (2001), 박영사
- 백정웅, "미국의 회사기회유용이론과 우리 상법 ― 델라웨어주의 구스 사건을 중심으로 ―", 상사법연구, 25(3), pp.361~393 (2006), 한국상사법학회
- 백정웅, "퍼스트 링컨우드 지주(First Lincolnwood Corp.)사건 등에 나타난 힘의 원천이론의 비교법적 고찰", 상사법연구, 24(4) (2006), 한국상사법학회
- 백정웅, "한국 금융지주회사에 대한 적기시정조치", 원광법학, 23(2) (2007), 원광대학교 법학연구소
- 백정웅, "힘의 원천이론", 비교사법, 12(4) (2005), 한국비교사법학회
- 서완석, "지배주주와 주주유한책임원칙", 상사법연구, 23(3) (2004), 한국상사법학회
- 이경민, "자본시장통합법(안)상의 투자자 보호", 기업법연구, 21(2) (2007), 한국기업법학회
- 이영대, "금융지주회사의 규제에 관한 연구", 박사, 경제법전공, pp.2002
- 이준호, "미국 금융당국의 적기시정조치 운용 현황과 시사점", 금융연구, 2(2) (2001), KDIC
- 이철송, "회사법강의" (2005), 박영사
- 전선애, "적기시정조치제도의 의의와 개선방안", 규제연구, 15(1) (2006), 한국경제연구원
- 정찬형, "상법강의(상)" (2007), 박영사
- 재정경제부, "금융기관 적기시정조치의 실효성 제고방안 연구" (2004), 재정경제부·한국개발연구원
- 조정래, "금융산업의구조개선에관한법률의 개선방안-부실금융기관 처리규정의 문제점에 관한 고찰-", BFL, (7) (2004), 서울대학교 금융법센터
- 조지현, "주주유한책임원칙의 제한-독일법상 실체파악책임을 중심으로", 상사법연구, 23(3) (2004), 한국상사법학회
- 한국개발연구원, "적기시정조치 제도 개선" (2005), 한국개발연구원
- Adam B. Ashcraft, "Are Bank Holding Companies a Source of Strength to Their Banking Subsidiaries?(Fed. Res. Bank of New York, Staff Rep. No. 189," (2004)
- Anthony Saunders, "Universal Banking In The United States: What Could We Gain?, What Could We Lose?" (1994)
- "A New Capital Adequacy Framework"[URL]
- "International Convergence of Capital Measurement and Capital Standards: A Revised Framework"[URL]
- Bryan A. Garner, "Black’s Law Dictionary" (2001)
- Christopher T. Curtis, "The Taking Clause and Regulatory Takeovers of Banks and Thrifts, 27 Harv. J. on Legis. 367" (1990)
- Craig L. Brown, "Note, “Board of Governors v. MCorp Financial, Inc.: Evaluating The Source-Of-Strength Doctrine”, 21 Hofstra L. Rev. 235" (1992)
- David Andrew Segal, "Note, “A Note to Congress and the FDIC: After FIRREA Where’s the BIF?”, 59 Fordham L. Rev. S411" (1991)
- Dimitri Vittas, "Thrift Deposit Institutions In Europe And The U.S." (1997)
- "Directive 2002", 87, 239, pp.EEC, 79, 267[DOI]
- "Directive 2000", 12, 05, pp.2000[DOI]
- "Directive 98", 78, 1, 5, pp.12, 1998
- Eric J. Gouvin, "Of Hungry Wolves and Horizontal conflicts: Rethinking the Justifications for Bank Holding Company Liability" (1999), 1999 U. Ill. L. Rev. 949
- Howell E. Jackson, "The Expanding Obligations of Financial Holding Companies" (1994), 107 Harv. L. Rev. 507
- James F. Groth, "Comment, “Can Regulators Force Bank Holding Companies To Bail Out Their Failing Subsidiaries?-An Analysis Of The Federal Reserve Board’s Source-Of-Strength Doctrine”" (1991), 86 Nw. U. L. Rev. 112
- Jennifer B. Arlin, "Note, “Of Property Rights and the Fifth Amendment: FIRREA’s Cross-Guarantee Reexamined”" (1991), 33 Wm. & Mary L. Rev. 293
- Jennifer J. Alexander, "Note, “Is the Cross-Guarantee Constitutional?”" (1995), 48 Vand. L. Rev. 1741
- John C. Deal, "Capital Punishment: The Death of Limited Liability for Shareholders of Federally Regulated Financial Institutions" (1995), 24 Cap. U. L. Rev. 67
- John R. Walter, "Firewalls, 82(4) Fed. Res. Bank Rich. Econ. Q. 15" (1996)
- Jonathan R. Macey, "Banking Law And Regulation" (2001)
- Jonathan R. Macey, "The Business of Banking: Before and After Gramm- Leach-Bliley", J.Corp.L, 25 (2000)
- Kieran J. Fallon, "Note, “Source of Strength or Source of Weakness?: A Critique of the “Source-of-Strength” Doctrine in Banking Reform”", 66 N.Y.U. L. Rev. 1344
- Leonard Bierman, "The “Source of Strength” Doctrine: Formulating the Future of America’s Financial Markets" (1993), 12 Ann. Rev. Banking L. 269
- Lissa L. Broome, "Banking and Insurance: Before and After the Gramm- Leach-Bliley Act", J. Corp. L, 25 (2000)
- Lissa Lamkin Broome, "Redistributing Bank Insolvency Risks: Challenges to Limited Liability in the Bank Holding Company Structure" (1993), 26 U.C. Davis L. Rev. 935
- Lissa L. Broome, "Regulation of Bank Financial Service Activities: Cases and Materials" (2001)
- Micheal K. O’Neal, "Update on Prompt Corrective Action and Other Regulatory Enforcement Powers" (1994), 48 Consumer Fin. L.Q. Rep. 259
- Note, "Piercing the Corporate Law Veil: The Alter Ego Doctrine under Federal Common Law" (1982), 95 Harv. L. Rev. 853
- Peter French, "Comment, “Parent Corporation Liability: An Evaluation of the Corporate Veil Piercing Doctrine and Its Application to the Toxic Tort Arena”, 5 Tul. Envtl. L.J. 605", ~ (1992)
- "Assessing the Impact of Prompt Corrective Action on Bank Capital and Risk, FRBNY Econ. Pol’y Rev. 23"[URL]
- Tracy A. Helmer, "Note, “Banking on Solvency: The Takings Power of FIRREA’ Cross-Guarantee Provision" (1995), 30 Val. U. L. Rev. 223
- William R. Keeton, "Bank Holding Companies, Cross-Bank Guarantees, and Source of Strength" (1990), Fed. Res. Bank Kansas City Econ. Rev. 54