은행법상 은행업무의 기능에 관한 연구

Abstract

The Banking Act requires those who wish to run the banking business to obtain government charter and strictly prohibits unauthorized banking operations. However, the meaning of the banking business, which requires approval, and the scope of work subject to specific approval, are not clear, leaving much room for confusion. It is not easy to recognize these problems because Banking Act explicitly define the concept of “banking”. However, the recent dispute between the U.S. OCC and the state of New York over the chartering of banks for FinTech has given important implications for the enforcement of domestic Banking Act. The concept of banking business should be operated in close connection with its accreditation system, and this uncertainty in banking business is greatly undermining the functions intended by this legislation. The concept of banking can be largely divided into functions that restrict banks' work and functions that restrict unauthorized entry into the banking industry. Due to the recent changes, however, in the financial industry and the insufficiency of the domestic legal system, there have been cases in which unauthorized individuals actually operate a part of banking business and there are more and more examples which are operated by legally authorized banks but actually by unauthorized entity in terms of external appearance and economic substance. In some cases, there is much room for interpreting the bank's unique business, which is subject to approval, as being able to be run without obtaining approval. Rather than suggesting direct improvements in the overall legal system regarding these issues, this article suggests some implications that need to be reflected in policymaking, such as improving regulations on the definition of the banking business, subdividing the banking business chartering system, and considering the enactment of the Integrated Banking Act.