미국 금융지주회사 제도에 관한 고찰과 그 시사점

Abstract

The Financial Services Modernization Act of 1999, also known as the Gramm-Leach-Bliley Act (hereinafter, GLBA), was enacted on November 12, 1999 in the United States. GLBA repealed restrictions on banks affiliating with securities firms which were contained in sections 20 and 32 of the Glass-Steagall Act of 1933. The Glass-Steagall Act prohibited any one institution from acting as any combination of an investment bank, a commercial bank, and an insurance company. The GLBA created a new “financial holding company” under section 4 of the Bank Holding Company Act, in which said holding companies can engage in a statutorily provided list of financial activities, including insurance activities, securities underwriting and agency activities, merchant banking, and insurance company portfolio investment activities. Additionally, activities that are deemed “complementary” to financial activities are also authorized. Any company which wants to engage in comprehensive financial activities as a financial holding company must get permission from The Federal Reserve. The Federal Reserve may not permit a company to form a financial holding company if any of its insured depository institution subsidiaries are not well capitalized and well managed, or did not receive at least a “satisfactory” rating in their most recent examination by Community Reinvestment Act of 1977. The GLBA introduced a functional regulation system by which the Federal Reserve plays an umbrella supervisor’s role and banking activity is regulated by the OCC, securities activity by the SEC, and insurance activity by a state insurance authority. However, the GLBA encourages coordination among the regulators and confidential sharing of information to improve both the efficiency and the quality of the supervision of financial holding companies and their affiliated depository institutions and companies engaged in insurance activities. In addition, the GLBA requires clear disclosure by all financial institutions of their privacy policy regarding the sharing of non-public personal information with both affiliates and third parties, and requires a notice to consumers and an opportunity to “opt-out” of sharing of non-public personal information with nonaffiliated third parties subject to certain limited exceptions. Furthermore, the Federal Reserve has employed the “Source of Strength Doctrine”, which has been accepted by the Courts, to impose fiscal liability onto holding companies when their financial subsidiaries fail by the Code of Federal Regulation. This doctrine has also been employed by the GLBA. In addition, the U.S. Courts have employed the “Prompt Corrective Action” and the “Cross-Guaranteed Provision” in combination to regulate a holding company and its subsidiaries. Recently, Korea amended its financial holding company act in 2009 to allow a company which does not contain a bank to be considered as a non-financial holding company. Non-financial holding companies are regulated less stringently than bank holding companies. They are able to own a non-financial company as a subsidiary. Amended the financial holding company act is reasonable because non-financial holding companies have a different risk structure compared to banks. However, the Act needs to be supplemented by making the source of strength doctrine obvious and employing the cross-guaranteed provision to regulate financial holding companies and their subsidiaries effectively. Moreover, in tandem with an integrated regulation system, a financial holding company should also be allowed to be managed as an integrated unitary entity, which would include an expansion of “consolidated tax returns”.