베일인제도 도입 관련 도산법 이슈

Abstract

Since the FSB announced a Key Attributes of Effective Resolution Regimes for Financial Institutions (hereinafter, ‘Key Attributes’) in 2011, Korea is also working on introducing the Key Attributes into its laws. The Key Attributes of the FSB is to pursue the stability of the financial system by preparing against the risk of insolvency of large financial companies such as G-SIBs by taking into account the characteristics of the financial institutions. The adoption of the FSB’s Key Attributes into Korean law is a task that requires considerable considerations. First, there is a problem into which law the compulsory bail-in for creditors should be put in the recovery or resolution process of large financial companies. In addition, it is necessary to establish the relationship between the recovery and resolution plan (RRP) for financial companies which should be introduced under the FSB’s Key Attributes and the rehabilitation and bankruptcy regime already established under the current Korean integrated bankruptcy law. In order to minimize the impact on the financial market through the swift resolution of large financial companies, the extent to which the court's judicial review will be allowed of the measures taken by the resolution authorities should be decided. The temporary stay right to suspend financial contracts is already exercised in contract terms through the ISDA protocol, and the industry continues to work in the context of a contractual approach through the revision of the 2015 Resolution Stay Protocol. On the other hand, even if the arrangement plan is well established at the level of a large financial institution, the effect can be substantially deteriorated unless an institutional framework is put in place to effectively implement it. Especially, in the case of the SPE strategy, it is essential for resolutionary authorities to cooperate closely with each other. In order to carry out orderly resolution procedures abroad, it is necessary to establish a system to allow the foreign countries to recognize and support foreign bankruptcy procedures need as well as to respond appropriately to the ring fencing clauses that may exist in the domestic laws of each country. Furthermore, in order to facilitate cooperation by foreign authorities, resolution measures are needed to maintain the creditor's principle of equal treatment as set forth in the FSB’s Key Attributes. However, this is also a problem due to differences in determining the priority of the creditors, such as determination of the order of priority in reimbursement including depositors and preferential treatment of domestic creditors such as giving priority claims at the time of resolving insolvent financial companies.