은행업무와 지배구조의 개선 등과 관련한 2008년 은행법 개정안의 법적 검토

Abstract

On October 20, 2008, the Financial Services Commission ("FSC"), a government agency in charge of both financial policy and financial regulation, announced the proposed amendments to the Bank Act, including changing of regulation system for defining a bank's concurrent business and ancillary business, and improvements of corporate governance of a bank. This article is to review the proposed amendments to the Bank Act and to suggest certain improvements based on such a review. The main features of the proposed amendments are as follows: first, the current authorization system for a bank's concurrent business will be changed into a prior reporting system, making a room for expansion of a bank's concurrent business, and the current positive system for the scope of a bank's ancillary business will be changed into a comprehensive system, meaning that a bank will be allowed to engage in its ancillary business by just reporting to the FSC in advance, although the FSC has power to reject or change such reports to a limited extent; second, requirements for authorization of banking business will be diversified, allowing establishment of a specialized bank, especially an internet primary bank; third, corporate governance of a bank will be improved by (i) disqualifying an interested person of a bank's major shareholder as an outside director of a bank and (ii) increasing the ratio of outside directors in the board of directors from the current no less than 50% to a majority; fourth, a bank's duty of management or administration of conflicts of interest in a bank's engagements in its concurrent business and ancillary business will be imposed; and fifth, the current term "financial institution" will be changed into a "bank," and the qualifying requirements for executive officers will be added. Even though the proposed amendments are evaluated as desirable overall, some improvements are needed; first, the duty for management of conflicts of interest should be exempt for a bank's ancillary business since this ancillary business has not so much possibility to incur such conflicts of interest; second, the definition of "ancillary business" should be revised reflecting the business using a bank's assets, personnel and facilities such as a bank's real estate lease business; third, securitized derivative products, rather than derivative products, should be included in the restriction of the ceiling of securities investment of a bank; and fourth, an unlisted bank should be included in the new requirement for the majority of outside directors.