독일 은행업규제와 그 시사점

Abstract

The financial crisis originated from the United States in 2007 hit the whole world and is still going on. In particular, Portugal, Ireland, Italy, Greece and Spain (hereinafter PIIGS) are the weakest drawback of such a crisis. On the other hand, Germany is relatively strong state in European Union (hereinafter EU). In this sense, the article examines the German banking regulation and its lessons for the Korean legal system are as follows: First, Korea and German have the definitions of banking activities in substantive enactment. Second, Korea and Germany do not have any express provision for the purpose or principle of banking regulation and (or) supervision. Third, single financial authority controls over banking activity in both Korea and Germany. Fourth, Korea has preliminary authorization for the banking business but Germany does not. Fifth, even if Korea has different approval processes to deal with electronic money depending upon financial institutions, Germany does not any other discrepancies among financial companies. Sixth, the amount of minimum capital for banking activity in Korea is far more than that of minimum capital for banking business in Germany. Seventh, the regulation against the ownership in banking depends on who the owners are and Germany is not. Also, the supervision over banking activities’ credit in Korea differs in borrowers and Germany does not. Eighth, there are the board of directors (unitary system) and management board and supervisory board (dual system) in Germany and whether which system is selected is up to banking companies. Similarly to such the German banking system, there is also the board of directors (unitary system) and monitoring board and executive officer (dual system) in Korea. Ninth, Germany has to consider the balance of the representation between men and women in the board of directors or management board and supervisory board. On the other hand, Korea does not. Tenth, recently, the Korean government is trying to separate compulsorily the offices of the chairman of the board of directors and chief executive officer (CEO). However, German banking companies have an option about whether which the separation or the aggregation between such offices is chosen. Eleventh, the German regulation of concurrent offices in banking imposes on the number of time to be a director. However, the Korean supervision against concurrent offices in financial companies does on the nature of the office concerned to be a director. Twelfth, all the members of the board of directors’ audit committee must be professional in accounting or financial field in Germany while just one is required to be an accounting or financial expert in Korea. Thirteenth, the German financial regulator (BaFin) may demand a different director in banks while the Korean financial regulator (Financial Services Commission: FSC) can request the dismissal of a director in all kinds of financial institutions. Fourteenth, there are the internal control system and compliance function in Korea and Germany. However, the Korean legislation provides that the compliance officer is charged with the task of such a compliance function while German legislation does not. Fifteenth, there is an on-site inspection over banking companies in Korea and Germany. Also, the scope of the on-site inspection is expanded into the large or major shareholders in banks. Sixteenth, there is a prompt corrective action over banking in Korea, not Germany. However, there is an exceptional suspension. Seventeenth, even though there exist the international and domestic cooperations in Korea and Germany, between financial regulators including the domestic cooperation between a financial regulator and another domestic regulator such as the Korea Fair Trade Commission (hereinafter KFTC), the Korean system of the cooperation between financial regulators is disappointing compared to the German cooperative system. For the last time, the Korean legal system needs to be improved by the lessons from the examination of the German banking regulation and has to consider the international trends in the banking legislation. That is, the Korean banking legal system has to be interlocked with the international standards.