금융관련법상 규제형태의 문제점과 제재의 합리화방안

Abstract

In current major financial laws, we can find many problems caused by some conflicting articles between the law and its enforcement decree or many unnecessary overlapping regulations. This paper, in the view of regulation, intends to point out these problems and to imply the improvement proposals through the legislation. It will certainly contribute to the advancement of the financial industry and finally result in the financial consumer protection. With regard to Capital Market and Financial Service Business Act, this paper comments the necessity to redefine the meaning of public offering, to reconstruct the immoderate criminal punishment articles, to make an adjustment among the monetary sanctions and to clarify the provision concerning the breach of the obligation of an officer or an employee of each financial investment business entity to notice his/her own financial investment instruments tradings. With regard to Insurance Business Act, this paper comments the necessity to clarify the meaning of the insurance solicitation, to coordinate the overlapping regulations between the fine for negligence and the penalty surcharge and so on. With regard to Banking Act, this paper comments the necessity to definitize the blanket clause of section 54 and to revise the regulation concerning compensating balance. With regard to Financial Holding Companies Act, it is asserted in this paper that the problem of the overlapping regulations between the blanket clause concerning the fine for negligence and the criminal penalties should be solved. This paper suggests that some ideas should be considered when the financial laws are lesgislated. Firstly, the matters related with sales order had better be regulated by the self-regulatory organization than the financial authorities itself and it is necessary that a definite meaning should be described in the field of the core regulation area. Secondly, there are too many criminal punishment clauses even though the breaches are caused by some simple mistakes or negligence. The excessive criminal punishment clauses should be substituted for the fine for negligence clauses. Thirdly, it is very desirable to protect the financial consumers or investors enough, however, the excessive red tape of the formal procedure or of the meaningless regulations should be also removed Finally, according to the current financial laws, the financial authorities can discipline the business entity if the financial business entity doesn't have any internal control system, however, there is no ground for sanction even though the financial company or its employees don't comply with the internal control provisions as long as the internal control provisions are equipped only. It is necessary that the core parts of the internal control system should be observed by law.