은행 소유 규제 완화와 관련한2008년 은행법 개정안의 법적 문제와 개선 방안

Abstract

On October 13, 2008, the Financial Services Commission, a financial policy-maker and regulator in Korea, announced the proposed amendments to the Bank Act. The core one of the amendments is to deregulate bank ownership, particularly, alleviating the restrictions on bank ownership by a non-financial company group. This issue is a severe controversial one in Korea in that there has been controversial arguments about whether the control on a bank by a non-financial company group should be permitted or not. The Korean government has stuck to maintaining the policy of prohibiting a non-financial company group from controlling a bank, and now the new government seeks to shift such policy. The key elements of the 2008 proposed amendments to the Bank Act are as follows: first, a fund such as a pension fund, even if it would fall into a non-financial company group, would be allowed to own more than 10% of voting shares of a nationwide commercial bank; second, the criteria for a private equity fund (the "PEF") being regarded as a non-financial company group would be alleviated so that a non-financial company group may increase its investments in such PEF, for example, increasing the current 10% limit to 30% ceiling to such PEF; third, a non-financial company group would be permitted to directly own up to 10% of voting shares of a nationwide commercial bank from the current 4% ceiling; and fourth, instead of easing such ownership, monitoring and regulations on such a non-financial company group becoming a large shareholder would be more enforced. However, some drawbacks on the proposed amendments are found; for example, the proposed amendments do not take any severe sanction such as the order of disposition of bank shares on a large shareholder who violates the relevant provisions prohibiting unfair transactions between such a large shareholder and the bank; and the scope of new definition of a large shareholder as non-financial company group is not so broad to cover any non-financial company group exerting a de-facto management influence on a bank. Overall, the 2008 proposed amendments to the Bank Act are evaluated as non-desirable in that they have some drawbacks in a legal respect and as well some problems in respect of financial policy because the control on a bank by a non-financial company group would be believed to cause many adverse effects on the banking industry as well as the financial industry.