은행의 파생상품업에 대한「자본시장과 금융투자업에 관한 법률」적용의 법적 문제

Abstract

On February 4, 2009, the Act on the Capital Market and Financial Investment Business (hereinafter the "Capital Market Act") will become effective. One of the conspicuous features of the Capital Market Act is to pursue the so-called "functional regulation" system. Thus, as long as a bank is engaged in a financial investment business, which includes financial derivative business, such a bank will be subject to the Capital Market Act. It is noted that further, on such financial derivative business, a bank is regulated by the Bank Act. Hence, unlike a financial investment company, which will be only subject to the Capital Market Act, since a bank is regulated by such two laws, it would be big burdensome to the bank. This article is to review such legal issues arising from the application of the Capital Market Act on a bank's financial derivative business. First, the Capital Market Act allows a bank to continue its financial derivative business within the scope of the currently permitted business by filing a report to the regulator, even though, in fact, it is regarded as being almost equivalent to the approval system. Currently, a bank is allowed to engage in OTC financial derivative dealing and brokerage businesses according to the interpretation of the guideline of a bank's ancillary business. In addition, although more or less controversial, a bank is permitted to engaged in overseas on-exchange financial derivative dealing and brokerage to a limited extent. Therefore, a bank will be permitted to keep on engaging in such financial derivative businesses under the Capital Market Act. This article, however, argues for permitting a bank to conduct domestic on-exchange financial derivative dealing and brokerage businesses. In addition, still the problem of a double regulation exists: in other words, the Capital Market Act as well as the Bank Act will apply to a bank's financial derivative business. In order to rectify such problem, it is suggested that first, the regulator define its function clearly on regulating such a bank's activities, and in the long term, the project of consolidating the Capital Market Act, the Bank Act and the Insurance Business Act be pursued, which will allow an universal banking system in Korea and contribute to enhancing the financial industry overall.