금융 시스템리스크를 감안한 금융기관 자기자본 규제정책

서상원 ( Sang Won Suh ) 한국금융학회 2010 금융연구 Vol.24 No.1

금융 감독정책은 금융 시스템 안정과 거시경제적 안정을 동시에 추구하면서 결정된다. 그런데 특히 경제불황기에는 두 목표간에 상충관계가 존재하기 때문에 감독정책 결정에서 당국의 세심한 주의가 필요하다. 본 연구의 목적은 정책당국의 감독정책 효과를 금융 시스템 및 거시경제적 안정측면에서 분석할 수 있는 모형을 제시하고 이를 통해 두 목표간 상충관계에 대한 구체적 정보를 제공함으로써 감독정책 결정에 도움을 주는데 있다. 주요 분석결과로는 (ⅰ) 심각한 경기불황기에 거시경제 안정을 위한 감독정책은 금융 시스템리스크를 높일 위험이 크며 (ⅱ) 은행들의 대출방식에 따라 감독정책의 효과가 달라질 수 있다는 점에 유의하여야 하고 (ⅲ) 경기불황기에 자기자본 적립의무를 경감시켜 은행대출을 증가시키려는 정책은 바젤Ⅰ에 비해 바젤Ⅱ에서 효과가 작게 나타나며 (ⅳ) 현재 경기불황이 심각한 상황에서 미래에도 경제상황이 개선되지 않으면 거시경제 안정을 위한 감독정책은 자칫 미래에 시스템리스크를 크게 상승시키는 부작용을 초래할 위험이 있다는 점 등을 들 수 있다. Financial systemic risk issues have become important since global financial crisis of 2008. Financial regulatory and supervisory policies had largely focused on how to maintain the soundness of individual financial institutions based on the belief that sound individual financial institutions guarantee against financial systemic risk. In particular, Basel Ⅱ changes bank capital regulation in such a way that bank credit risks are not severely affected by changes in borrowers` creditworthiness. However, the bank capital regulation in Basel Ⅱ does not take financial systemic risk into account but mainly concerns the soundness of individual banks. Moreover, Basel Ⅱ may induce procyclicality problem because loose bank capital regulation enables bank lending to grow further in boom periods while bank lending contracts due to tight bank capital regulation in recession periods. On the one hand, following Basel Ⅱ bank capital regulation, a financial regulator may be faced with procyclicality problem. On the other hand, if a regulator adjusts bank capital regulation so as to dampen business cycle fluctuations in recession periods, it may worsen the soundness of individual banks. This demonstrates the trade-off between macroeconomic stability and financial stability from a financial regulation policy perspective. This paper addresses financial regulator`s decision problem which should take both macroeconomic stability and financial stability into account. I present a model to analyze the effects of financial regulation policy on bank lending and financial systemic risk. This model can provide financial regulators with informations about the trade-off between macroeconomic stability and financial stability and therefore help them to form regulation policy. The model presented in this paper can analyze the trade-off between macroeconomic stability and financial stability and also is designed to incorporate many realistic assumptions. For example, the model assumes multiple banks, and each bank has heterogeneous borrowers with different creditworthiness. Credit ratings are assigned according to internal methods and change due to common or idiosyncratic shocks. The model is basically designed for a single period but extends for multi-periods without difficulty. Main findings are: (ⅰ) Regulation policies for enhancing macroeconomic stability might deteriorate financial stability in a severe recession period. (ⅱ) The effects of regulations may be dependent upon banks` lending behavior. (ⅲ) The effect of reducing capital requirement upon bank lending in a recession period is greater under Basel II than under Basel I. (ⅳ) In a dynamic analysis, regulation policies for enhancing macroeconomic stability might lead to deteriorated financial stability in the future, if current recession cannot rebound quickly.

The Change and Trend of Financial Regulation in Korea - Focusing on Banking Regulation -

최승필 은행법학회 2012 은행법연구 Vol.5 No.2

Financial regulation can be referred to "an authority puts limit in certain activities and enforces compliance in order to maintain market order in trade among financial institutes, producers of financial products, and financial customers. Changes of financial regulation systems in Korea have been accelerated mainly by the foreign exchange crisis, the global financial crisis and FTA(Free Trade Agreement between Korea and Unites States of America, KORUS). Especially, ‘market regulation establishment’ and ‘competition strengthening’ suggested by the IMF bail-out program are evaluated to be an important motivation behind reinforcing sound regulations in the Korean financial law system and improving unnecessary entry regulations and the ‘Iron Wall’ in each section. The biggest momentum of changes between the foreign exchange crisis in 1998 and the recent global financial crisis was the establishment of Financial Investment Services and Capital Market Act. Now, the financial regulation system has been facing a new trend of international agreement in regulation through the re-regulation trend since the global financial crisis and FTA. In the Banking Industry, entry and liquidation are regulated through an approval to protect depositors or investors. The Banking Act contains the requirements for approval of entry and liquidation. Ownership regulation was introduced to prevent banks from becoming a ‘piggy bank’ of industrial capital and to ban interest conflicts by major shareholders and illegal profits through moral hazards according to the result of interest conflicts. Banking business under business regulation is divided into original, incidental and concurrently running parts, and each business is expanded and changed following development of financial market. Prudential regulation with Basel Capital Accord can be found in Art. 2 Para. 1 Nr. 5 of the Banking Act and Art. 1-2 of the Enforcement decree. Basel Capital Accord II was introduced to Korea in 2007. In Dec. 2010 the Basel Committee issued the Basel Capital Accord III, which presented recent global regulatory standards on bank capital adequacy and liquidity endorsed by the Seoul G20 summit in Nov. 2010. In addition to these regulation, there are interest conflict regulation and personnel regulation. Regulations through administrative guidance are preferred as one of the non-typical methods of financial regulation. Its original purpose is that a government attracts economic activities to a certain direction based on agreements of partners. However, the administrative guidance is authoritative in reality. The Financial Services Commission enacted an operational rule on administrative guidance to improve transparency of administrative guidance in 2007. One of recent issues is competition over authority between FSC and FTC. However, they could not address this case from the legal point of view and ended up closing the trouble merely by making an agreement on cooperation in advance through mutual MOU. Today an important part of financial institutes’ supervisory system is the self regulation system, and an significant point of this regulation is compliance. Meanwhile, the integral Financial Consumer Protection Bureau is established for consumer protection in Financial Market in this year. Reorganization of a regulation system followed by integration of financial sectors is another consistent issue. This phenomenon is occurring in the legal field as well and complications happen in authority of supervisory agencies. In this situation, the core of financial regulation to bring successful results in the future will depend how to cope with such integral businesses of financial institutions.

미국의 서브프라임 금융위기와 헤지펀드 규제 동향

윤성승 국제거래법학회 2008 國際去來法硏究 Vol.17 No.2

Hedge funds are a type of private equity funds. During the U.S. subprime mortgage crisis, big hedge funds with huge loss from the investment to collateralized debt obligations (CDOs) based on residential mortgage-backed securities (RMBSs) were collapsed. Since hedge funds are located in the center of the crisis, there are still debates whether hedge funds were the cause of financial crisis or hedge funds just increased the effects of the subprime financial crisis. The subprime financial crisis was caused by the melting down of the value of subprime mortgage loans and assets. It was triggered by the decreased residential housing value and the increased default rates of loan payments. The collapse of some hedge funds is the result of such changes of housing market. Thus hedge funds are one of the victims of the subprime crisis. After some huge hedge funds were bankrupted or suspended redemption, the market for transactions of RMBSs or CDOs based on RMBSs was almost stopped. This made impossible for the financial institutions heavily engaged in subprime mortgage loans to meet the depositors’ demand when the deposit run happened because they could not sell their loans using RMBSs to make liquidity. Even though hedge funds are not the cause of the crisis, the impact of super huge hedge funds’ collapse was very strong to other financial institutions such as banks. Thus the issue of hedge fund regulation attracted attentions from many commentators after the subprime mortgage crisis. However, there are still pros and cons about the hedge fund regulation. Major issues related to the hedge fund regulation are leverage level, transparency, and fraud by hedge fund. Highly leveraged hedge funds increase the risks as well as the potential of high return. Since hedge funds are investing to the assets with high risk to get high absolute returns, the fund managers must provide to the investors the information regarding the changes of the strategies, valuation, and composition of their portfolio assets with timely basis. If hedge funds’ managers do not provide material information or provide untrue information to the investors about the hedge funds, the investors will receive loss by the fraudulent act. Even though several years before the subprime crisis, there were recommendations by the U.S. President’s Working Group and by the Financial Stability Forum (FSF), respectively, after the Long-Term Capital Management’s collapse, both reports did not recommend direct regulation on hedge funds. Instead they recommended increasing transparency and enforcing counterparties risk management. After the subprime financial crisis, FSF still recommended indirect regulation of the hedge funds even though it added some additional items such as changes in role and uses of credit rating agencies regarding structured products. Recently, the International Organization of Securities Commission (IOSCO) made recommendations regarding possible future IOSCO works in the report on the subprime crisis. It recommended indirect regulations such as increase of transparency in structured finance transactions, improvement of risk management practices and valuation of structured finance products, and increase of quality and integrity of the rating process on structured products by credit rating agencies. Before the subprime crisis, the U.S. Securities and Exchange Commission (SEC) tried to regulate hedge funds by requiring registration using Rule 203(b)(3)-2(Hedge Fund Rule) under Investment Advisors Act of 1940. However, such rule was invalidated by the court decision because it is against the purpose of the Investment Advisors Act of 1940. Nevertheless, SEC introduced alternatively new Rule 207(4)-8 (Anti-fraud Rule) to regulate hedge fund fraud by the investment advisor of the fund. This year SEC filed a civil suit against the managers of two hedge funds operated by Bear Stearns Asset Management, when they was collapsed and incurred huge loss to the inve... Hedge funds are a type of private equity funds. During the U.S. subprime mortgage crisis, big hedge funds with huge loss from the investment to collateralized debt obligations (CDOs) based on residential mortgage-backed securities (RMBSs) were collapsed. Since hedge funds are located in the center of the crisis, there are still debates whether hedge funds were the cause of financial crisis or hedge funds just increased the effects of the subprime financial crisis. The subprime financial crisis was caused by the melting down of the value of subprime mortgage loans and assets. It was triggered by the decreased residential housing value and the increased default rates of loan payments. The collapse of some hedge funds is the result of such changes of housing market. Thus hedge funds are one of the victims of the subprime crisis. After some huge hedge funds were bankrupted or suspended redemption, the market for transactions of RMBSs or CDOs based on RMBSs was almost stopped. This made impossible for the financial institutions heavily engaged in subprime mortgage loans to meet the depositors’ demand when the deposit run happened because they could not sell their loans using RMBSs to make liquidity. Even though hedge funds are not the cause of the crisis, the impact of super huge hedge funds’ collapse was very strong to other financial institutions such as banks. Thus the issue of hedge fund regulation attracted attentions from many commentators after the subprime mortgage crisis. However, there are still pros and cons about the hedge fund regulation. Major issues related to the hedge fund regulation are leverage level, transparency, and fraud by hedge fund. Highly leveraged hedge funds increase the risks as well as the potential of high return. Since hedge funds are investing to the assets with high risk to get high absolute returns, the fund managers must provide to the investors the information regarding the changes of the strategies, valuation, and composition of their portfolio assets with timely basis. If hedge funds’ managers do not provide material information or provide untrue information to the investors about the hedge funds, the investors will receive loss by the fraudulent act. Even though several years before the subprime crisis, there were recommendations by the U.S. President’s Working Group and by the Financial Stability Forum (FSF), respectively, after the Long-Term Capital Management’s collapse, both reports did not recommend direct regulation on hedge funds. Instead they recommended increasing transparency and enforcing counterparties risk management. After the subprime financial crisis, FSF still recommended indirect regulation of the hedge funds even though it added some additional items such as changes in role and uses of credit rating agencies regarding structured products. Recently, the International Organization of Securities Commission (IOSCO) made recommendations regarding possible future IOSCO works in the report on the subprime crisis. It recommended indirect regulations such as increase of transparency in structured finance transactions, improvement of risk management practices and valuation of structured finance products, and increase of quality and integrity of the rating process on structured products by credit rating agencies. Before the subprime crisis, the U.S. Securities and Exchange Commission (SEC) tried to regulate hedge funds by requiring registration using Rule 203(b)(3)-2(Hedge Fund Rule) under Investment Advisors Act of 1940. However, such rule was invalidated by the court decision because it is against the purpose of the Investment Advisors Act of 1940. Nevertheless, SEC introduced alternatively new Rule 207(4)-8 (Anti-fraud Rule) to regulate hedge fund fraud by the investment advisor of the fund. This year SEC filed a civil suit against the managers of two hedge funds operated by Bear Stearns Asset Management, when they was collapsed and incurred huge loss to the investo...

우리나라 금융지주회사법의 규제법리에 관한 비교법적 연구

백정웅 한국상사법학회 2008 商事法硏究 Vol.26 No.4

Recently, many countries, such as the United States, Korea and western European countries, have tried to convert their banking or (and) financial institutions into huge enterprises (e.g., bank or financial holding company) and get the competitive benefits of their banking or financial industries against other countries through the economies of scope and scale by means of such a conversion. In this sense, Korea has followed such a global trend by enacting the Korean Financial Holding Company Act (hereinafter FHCA). However, there are several drawbacks in the FHCA, such as definitional and requirement problems of the Source of Strength Doctrine (hereinafter SSD) and the Prompt Corrective Action (hereinafter PCA), and the non-adoption of the Cross-Guaranteed Provision (hereinafter CGP). Because of those problems, the FHCA through a financial holding company is not enough to facilitate the efficacy to improve the competitive benefits of Korea’s banking or (and) financial industries over other countries. Therefore, there needs a good solution and the author considers the good solution as a consolidation- centered regulation (hereinafter CCR) including the SSD, the PCA and CGP. In the context of the article the CCR refers to the regulation that treats a bank or financial holding company and its subsidiary (or subsidiaries) as a single entity to prevent the moral hazard caused under the roof. The CCR is generally specified by the SSD, the PCA, CGP and so on. Even though the CCR is a good regulation, it needs to be assisted by other regulations (e.g., institutional or entity regulation, functional regulation and separation-centered regulation) because it is not also a perfect regulation. Because the author examines the legal aspects of the SSD, PCA and CGP as specified tools of the CCR focused generally on the United States’ legal system, he hopes that the review of the European legal system focused on the Basel II and Directives follow to this article to produce perfect results of a regulatory principle. The author has a plan to write a paper on the combined and developed regulatory principle including the United States and the western European countries. Recently, many countries, such as the United States, Korea and western European countries, have tried to convert their banking or (and) financial institutions into huge enterprises (e.g., bank or financial holding company) and get the competitive benefits of their banking or financial industries against other countries through the economies of scope and scale by means of such a conversion. In this sense, Korea has followed such a global trend by enacting the Korean Financial Holding Company Act (hereinafter FHCA). However, there are several drawbacks in the FHCA, such as definitional and requirement problems of the Source of Strength Doctrine (hereinafter SSD) and the Prompt Corrective Action (hereinafter PCA), and the non-adoption of the Cross-Guaranteed Provision (hereinafter CGP). Because of those problems, the FHCA through a financial holding company is not enough to facilitate the efficacy to improve the competitive benefits of Korea’s banking or (and) financial industries over other countries. Therefore, there needs a good solution and the author considers the good solution as a consolidation- centered regulation (hereinafter CCR) including the SSD, the PCA and CGP. In the context of the article the CCR refers to the regulation that treats a bank or financial holding company and its subsidiary (or subsidiaries) as a single entity to prevent the moral hazard caused under the roof. The CCR is generally specified by the SSD, the PCA, CGP and so on. Even though the CCR is a good regulation, it needs to be assisted by other regulations (e.g., institutional or entity regulation, functional regulation and separation-centered regulation) because it is not also a perfect regulation. Because the author examines the legal aspects of the SSD, PCA and CGP as specified tools of the CCR focused generally on the United States’ legal system, he hopes that the review of the European legal system focused on the Basel II and Directives follow to this article to produce perfect results of a regulatory principle. The author has a plan to write a paper on the combined and developed regulatory principle including the United States and the western European countries.

파생상품의 위험성과 규제에 관한 자본시장법의 재정비

송호신 ( Ho Shin Song ) 경상대학교 법학연구소 2011 法學硏究 Vol.19 No.1

파생상품 거래에 기본이 되는 규제 법률은 「자본시장과 금융투자업에 관한 법률」이다. 자본시장법은 2007년 7월 3일 자본시장의 금융혁신과 경쟁을 촉진하여 우리나라의 자본시장을 동북아시아 금융시장의 중심으로 세우고, 경쟁력 있는 세계적 투자은행(Invest Bank)을 출현시킬 목적으로 제정되었다. 자본시장법은 선도 · 옵션 · 스왑과 같은 파생상품(derivatives)의 개념을 체계화하였고 파생상품의 기초자산의 범위를 확대하였다. 또한 종래 구「증권거래법」 · 구「선물거래법」 · 구「간접투자자산운용업법」 · 구「신탁업법」 · 구「종합금융회사에관한법률」 등에 흩어져 있던 파생상품에 관한 규정들을 통합하였다. 파생상품의 종류를 각종 법령들에 제한적으로 열거하였던 것을 포괄주의로 전환하며 완화함으로써, 신종 파생상품의 설계나 판매 및 중개에 제약요인으로 작용하였던 한계를 극복하고자 하였다. 그런데 2008년부터 미국발 금융위기가 전세계를 강타하게 되었고, 우리나라 역시 그 파고를 피해갈 수 없었다. 「서브프라임모기지론(subprime mortgage loan)」이라는 부동산 담보대출과 관련된 파생상품들로 인하여 시작된 동 위기는 파생상품의 위험성을 경각시키게 하는 계기가 되었고, 우리나라 역시 환헤지 장외파생상품인 「KIKO」로 인해 기업이 대량도산 위기를 초래하는 파생상품의 위험성을 실감할 수 있었다. 금융파생상품이 경제위기와 기업파산으로 이끄는 위험성을 내포하고 있다는 사실은 아무도 아무도 고려하지 못하는 사이에 우리나라는 파생상품에 대한 규제와 빗장을 풀어버린 상태가 되어버렸다. 그 사이에 미국에서는 「도드-프랭크법」이 통과되었고, 유럽 역시 강력한 금융규제법을 제정함으로써 2007년 제정된 자본시장법을 그대로 적용해야 할 것인가를 놓고 논란이 일어나게 되었다. 이제 자본시장법은 파생상품의 자율을 확대하면서 동시에 규제를 강화해야 하는 모순에 직면해 있다. 빅뱅은 필요하지만 그렇다고 규제완화가 파생상품의 위험을 조장해서는 아니 된다. 이러한 모순을 어떻게 풀어나갈 것인지가 자본시장법의 재정비와 관련된 과제로 남게 되었다. 파생상품의 위험성과 그에 따른 규제와 관련하여 아래와 같은 자본시장법의 재조정을 모색하여야 할 젓이다. ① 자본시장법의 규제에서 제외되었던 은행법과 보험법 및 서민관련 금융법 분야 그리고 실질적인 금융법률인 여신전문금융업법·부동산투자회사법·선박투자회사법·중소기업창업지원법·사회기반시설에대한민간투자법 등에 대한 정비와 조정이 필요하다. 파생상품이 이들 법률을 기반으로 설계된다면 실질적으로 자본시장법을 통한 규제일원화는 달성될 수 없을 것이기 때문이다. ② 파생상품의 포괄적 개념화에도 불구하고 그 개념을 명확히 할 필요가 있으며, 기초자산의 확대에 따라 유발될 수 있는 규제범위의 혼동과 충돌, 업종간 업무영역의 충돌, 재정건전성 등의 문제에 대한 법적 보완과 감독제도의 정비가 요청된다. ③ 자본시장통합법에서 배제된 은행법이나 보험법과의 관계에서 규제 형평성을 도모해야 하며, 이의 해결을 위해서는 은행법과 보험법을 포함한 보다 완전한 형태의 금융법의 정비가 수반되어야 할 것이다. 또한 ④ 금융투자회사의 겸영과 업무범위의 확대와 관련하여 은행·보험·증권 등 각 업종간에 전업체계의 기본 틀을 유지하면서, 자본 시장법상의 기능별 규제와 연계할 수 있도록 하는 방안을 모색하여야 한다. 예컨대 핵심업무 사이의 겸영은 원칙적으로 제한하여 업종간 장벽을 유지하되, 부수업무인 여신업·보험중개대리·자산운용·투자일임·투자자문·자산의 보관관리 등에 대해서는 겸영을 확대하는 것이 바람직하다고 본다. Capital Market Act that regulate the derivatives trading were integrated with systematizing the concept of derivatives about the scope of the underlying assets, the existing "Securities Act" and the "Futures Trading" and the "Indirect Investment Asset" and the "Trust Business Act" and the "Foreign Exchange Law" and so scattered about the regulations on derivatives. Accordingly, the existing regulations on financial products in a positive regulation by switching a negative regulation were overcome a New design and sales of derivative works, and intermediaries constrained by the limitations, However, a capital markets law enforcement to be 4 days before the February 2009, since 2008, world had been hit the subprime mortgages that are real estate mortgage loans and related derivatives due to the global financial crisis. Korea also could not have escaped the tide of financial crisis, and KIKO that is derivatives of hedge, due to the mass of the crisis was faced with bankruptcy. In the face of this financial crisis, each state focuses on the strengthening of financial regulation has been actively promoted the legislation. especially in the United States was passed the "Dodd - Frank Act" that is assessed as the most powerful financial control law since the Great Depression. Currently, depending on the response of capital markets in these countries, Capital Market Act of Korea is facing the contradiction that the regulation must be strengthened with expanding self-regulation. How these contradictions will find the solution about derivatives is remain issues of Capital Market Act. Thus, this paper is finding solution in below such a law on the issue of Capital Market Act regulation and a judicial solution to a problem. Firstly, the Bank Act and Insurance Act and the field of financial law related to the common people were not to be unified in the current capital market system regulation. In addition, discipline systems are still confined because it is not included integration of the Fincial Act Credit Financial Business Act, Real Estate Investment Company Act Ship Investment Company Act, Small Business Establishment Act. Derivatives based on these Acts designed to govern as if the unification of intent of Capital Market Act is doubtful whether there can be achieved. especially, derivatives are traded in various financial industries such as banks, insurance and securities, but it can be caused problems that can be said the dual regulation of Capital Markets Act and Bank Act because trading derivatives is ``collateral business dimension" at the Bank Act. Secondly, regulatory supplements that can be triggered as the expansion of regulatory scope and conflict, a conflict of each section of business areas, such as financial soundness, and continuous supervision of the authorities are required. it is because comprehensive conceptualization of derivatives based on underlying assets ex post and the expansion into a comprehensive regulatory system. Thirdly, functional regulation only apply financial investment business but it has limits that still can not be applied to other areas. Derivatives transactions performed by a bank or insurance company were more likely to be applied, as being changed conventional financial institutions, each equal to one another to perform a regulatory system in place that limited financial investment company with a leadership position. In other words equity issues of regulation still remains, because the Bank Act and Insurance Act were excluded from the Capital Market Act. Eventually it is to be resolved by enacting the act including Bank Act and Insurance Act, as if full integration of Fincial Act. Fourthly, while maintaining a system of specialist of banking, insurance, securities, etc. with respect the dual management and the expansion of business scope of financial investment company of the system, there is plan to be align Functional regulation of Capital Markets Act. in other words, in principle while maintaining barriers to limit each section of business about the dual management of each core business, it is to be considered that it is dual management about the secondary task that is a loan and insurance brokerage agency, asset management, discretionary investment, investment advisory, asset management.

쌍봉형(Twin Peaks) 금융감독기구 체제 도입 논의 검토

고동원(Dong Won Ko) 성균관대학교 법학연구소 2013 성균관법학 Vol.25 No.1

Recently, in relation to reforming the financial regulatory organizations in Korea, the issue of introducing a "twin peaks" financial regulator model is actively being discussed among scholars and practitioners. The "twin peaks" model refers to the model where a prudential regulator and a business conduct regulator are separately established and operated. While an integrated financial regulator supervises and regulates all financial institutions in all matters, the twin peaks regulators supervise financial institutions according to their respective objectives, I.e. a prudential supervisor focusing on prudential matters of financial institutions, and a business conduct regulator being involved in regulating business conduct of financial institutions in selling their financial products. This twin peaks model is currently adopted in the countries such as Australia, Netherlands, and New Zealand, and recently the United Kingdom is scheduled to implement this model in April 2013. This article intends to analyze the advantages and drawbacks of the twin peaks model, in particular based on the cases of operating in Australia and New Zealand, by interviewing the relevant officials of the regulators in those two countries. As a result, it is assessed that the twin peaks model has more or less advantages of specializing in each operation and contributing to the efficiency of the regulation and supervision (e.g, the business conduct regulator is specializing in legal matters and so is more effective with regard to protecting financial consumers.) On the contrary, it is revealed that the twin peaks model demonstrates drawbacks in the matters of (i) "underlap regulation", i.e., certain financial institutions (e.g. non-bank financial companies, securities firms and fund managers in Australia) are not actually regulated by either financial regulator in the matter of the prudential supervision, (ii) "overlap regulation", i.e., certain financial institutions are regulated by both regulators in the area of their certain businesses, (iii) the possibility of non-cooperation or non-exchange of financial information between the two regulators, in which case it may lead to the inefficiency of financial regulation, and (iv) "commercial imbalance" regulation, i.e., a prudential regulator may engage in an excessive or over-prudential regulation disregarding the demand or environment of financial markets. This article is cautious about introducing the twin peaks model in Korea, because the drawbacks rather than the advantages are highly likely to happen in Korea and in particular the two regulators are not likely to cooperate each other or exchange information between them well, taking into account the situations of conflicts and non-cooperation between the current two regulators (i.e., the Financial Services Commission, the financial regulation policy decision-making agency, and the Financial Supervisory Service, the financial regulation execution agency).

금융감독기관의 그림자 규제 제도의 개선방안 : 미국의 제도를 중심으로

고재종(Koh, Jaejong) 한국비교사법학회 2020 비교사법 Vol.27 No.1

그림자 규제란 명시적인 법규가 존재하지 않음에도 불구하고 금융감독기관이 행정지도나 구두지시 등으로 금융사를 건건이 간섭하는 경우를 말한다. 그런데 만약 금융기관이 이러한 그림자 규제를 따르지 않았을 경우 금융감독기관은 다른 법규상 포괄적 조항을 근거로 자신들을 제재할지도 모른다는 불안감을 가지고 있다. 이에 금융회사들은 이미 폐지된 행정지도라도 관련 내용을 내부규정에 그대로 존치하여 두고 이를 따를 수밖에 없다. 이와 달리 금융감독기관은 금융기관의 규제를 위한 세부적인 기준을 모두 규정하면 좋겠지만, 이는 입법 기술상의 한계가 있어 주로 포괄적인 규정을 두어 금융기관을 구제하는 방식을 선호하고 있다. 이에 금융기관은 명확한 법적 근거 없이 행하는 금융감독기관의 행정지도 내지 감독행정이 문제가 있음을 지속적으로 지적하였다. 이런 문제점을 해결하기 위하여 우리나라 금융위원회는 2015년 4월 7일 「금융규제운영규정」을 제정하고, 가장 최근 2019년 1월 30일 그 내용의 일부를 개정·시행하였다. 그 내용은 금융행정지도의 발령 지양 및 사후관리 강화 등 금융규제 제도의 운영상 투명성 증진과 금융산업의 자율·경쟁의 촉진을 도모하고자 함이었다. 그럼에도 불구하고 모든 문제가 해결된 것은 아니다. 이에 본 논문은 미국의 그림자 규제 제도를 검토하여 우리나라 그림자 규제 제도의 개선방안을 제시하고자 한다. A Shadow regulation refers to cases in which the Financial Supervisory Service Commission interfere with financial companies through administrative guidance or verbal instructions, even though no explicit regulation exists. However, if financial companies fail to obey an order of Financial Supervisory Service Commission, the financial companies are afraid of the fact that financial institutions can impose sanctions on them based on comprehensive provisions under other laws. Accordingly, financial companies have no choice but to keep relevant information in internal regulations for fear that financial regulators will be held accountable, even for the administrative guidance that has already been abolished. On the other hand, even though the Financial Supervisory Service Commission would be nice to present all the detailed criteria for regulation, there is a limit to these measures about legislative and technical terms. Therefore, it is preferable to regulate it in detail through official documents on the basis of comprehensive legislation. However, I think there have a problem with administrative guidance or supervisory administration without legal grounds. To solve these problems, the nation’s Financial Services Commission enacted “the Financial Regulatory Operation Regulations” on April 7, 2015, and most recently revised them on January 30, 2019. These operation regulations provided principles, methods and procedures for financial administration guidance that regulated financial companies etc., in an non-legal manner. The purpose of the operation regulations was to enhance operational transparency of the financial regulatory system and promote autonomy and competition in the financial industry, including the issuance of a financial administrative guidance and strengthening follow-up control. In response, through a review of non-legal administrative regulations in the United States similar to the shadow regulation system in Korea, I am going to come up with measures to improve the shadow control system in our country.

서브프라임 대출관련 금융위기의 원인과 금융법의 새로운 방향 모색

박준 국제거래법학회 2008 國際去來法硏究 Vol.17 No.2

This article reviews the causes of the subprime crisis from a legal and regulatory perspective, found lessons from the subprime crisis and proposes a new direction for financial laws. Subprime related activities in the financial market are composed of three stages: (1) extension of subprime loans, (2) securitization of loan receivables and issuance of mortgage-backed securities and collateralized debt obligations, and (3) investment in such securities. We can find certain activities of the participants in the financial market and certain legal and regulatory aspects in each stage as having contributed to the occurrence of the crisis. At the first stage (extension of subprime loans), it appears that there was insufficient regulation and supervision of the business and risk management of mortgage lenders, which resulted in weak underwriting standards, unsound lending activities and unsound risk management. Securitization of loan receivables caused lenders to have less incentive to apply strong underwriting standards or monitor loans carefully. In addition, certain law and practice in the U.S.(such as defaulter-friendly anti-deficiency laws and practice) could have encouraged borrowers to default in the event of a housing price decline. This article reviewed the role of rating agencies and investment banks in the second stage (securitization). Rating is one of the most important factors in issuing structured financial products such as CDOs. A number of U.S. and international financial regulators indicated potential problems in rating including conflicts of interest. From a legal and regulatory perspective, there is an imbalance between the use of ratings in the market and supervision of rating agencies. Various regulations require or encourage the use of credit ratings as investment criteria or risk assessment standards. However, rating agencies have not been regulated in the U.S. until recently and the current laws and regulations provided for limited supervision. In addition, rating agencies are protected by certain exemption provisions under securities law and the constitutional freedom of speech right. Some of these regulations are expected to be changed in light of the role of credit rating agencies in structured financial products. Investment banks acting as arranger and/or distributor of securitized financial products are supposed to exercise due diligence in producing such products and appropriately disclose the risks therein. We need to monitor the investigations and court decisions on lawsuits on this issue to learn whether investment banks actually fulfilled such duties. In addition to the over-reliance on ratings and weak risk management of investors, which is mentioned by a number of commentators, several issues are reviewed. Loose regulations regarding the use of off-balance sheet entities made the early discovery of the level of problem assets held by financial institutions difficult. It is questionable whether the capital adequacy regulation of U.S. investment banks, particularly the consolidated supervision entities program was appropriate for such entities. U.S. regulators did not have sufficient information on market activities involving credit default swaps because credit default swaps are outside the scope of regulation. The subprime crisis shows that financial transactions are designed, and the current financial markets were used, to transfer not only funds but also risks. Transactions designed to transfer risks are increasing. We should review financial laws and regulations from the perspective of risk. Financial laws and regulations should be improved to ensure that accurate and sufficient risk information flows through the financial market so that the party purchasing or accepting risks are able to make an informed decision. They also need to ensure that gatekeepers of financial market such as investment banks and rating agencies perform their functions properly. The role of regulat... This article reviews the causes of the subprime crisis from a legal and regulatory perspective, found lessons from the subprime crisis and proposes a new direction for financial laws. Subprime related activities in the financial market are composed of three stages: (1) extension of subprime loans, (2) securitization of loan receivables and issuance of mortgage-backed securities and collateralized debt obligations, and (3) investment in such securities. We can find certain activities of the participants in the financial market and certain legal and regulatory aspects in each stage as having contributed to the occurrence of the crisis. At the first stage (extension of subprime loans), it appears that there was insufficient regulation and supervision of the business and risk management of mortgage lenders, which resulted in weak underwriting standards, unsound lending activities and unsound risk management. Securitization of loan receivables caused lenders to have less incentive to apply strong underwriting standards or monitor loans carefully. In addition, certain law and practice in the U.S.(such as defaulter-friendly anti-deficiency laws and practice) could have encouraged borrowers to default in the event of a housing price decline. This article reviewed the role of rating agencies and investment banks in the second stage (securitization). Rating is one of the most important factors in issuing structured financial products such as CDOs. A number of U.S. and international financial regulators indicated potential problems in rating including conflicts of interest. From a legal and regulatory perspective, there is an imbalance between the use of ratings in the market and supervision of rating agencies. Various regulations require or encourage the use of credit ratings as investment criteria or risk assessment standards. However, rating agencies have not been regulated in the U.S. until recently and the current laws and regulations provided for limited supervision. In addition, rating agencies are protected by certain exemption provisions under securities law and the constitutional freedom of speech right. Some of these regulations are expected to be changed in light of the role of credit rating agencies in structured financial products. Investment banks acting as arranger and/or distributor of securitized financial products are supposed to exercise due diligence in producing such products and appropriately disclose the risks therein. We need to monitor the investigations and court decisions on lawsuits on this issue to learn whether investment banks actually fulfilled such duties. In addition to the over-reliance on ratings and weak risk management of investors, which is mentioned by a number of commentators, several issues are reviewed. Loose regulations regarding the use of off-balance sheet entities made the early discovery of the level of problem assets held by financial institutions difficult. It is questionable whether the capital adequacy regulation of U.S. investment banks, particularly the consolidated supervision entities program was appropriate for such entities. U.S. regulators did not have sufficient information on market activities involving credit default swaps because credit default swaps are outside the scope of regulation. The subprime crisis shows that financial transactions are designed, and the current financial markets were used, to transfer not only funds but also risks. Transactions designed to transfer risks are increasing. We should review financial laws and regulations from the perspective of risk. Financial laws and regulations should be improved to ensure that accurate and sufficient risk information flows through the financial market so that the party purchasing or accepting risks are able to make an informed decision. They also need to ensure that gatekeepers of financial market such as investment banks and rating agencies perform their functions properly. The role of regulators and in...

은행에 대한 링펜스 금융규제 입법의 타당성 여부와 비용편익에 관한 연구

김병태 전남대학교 법학연구소 2017 법학논총 Vol.37 No.4

While a ring fence is traditionally the type of a technical contract condition in financial transaction, the ring fencing financial regulation is now recognized as a regulatory solution for problems in banking & finance and public utilities. For example, the financial functions and conceptual foundations of ring-fence are founded in the Vickers Report of England and the Glass-Steagall Act & the Volcker Rule of the U.S. In regulatory perspective and financial context, the term ring fence can well be understood as legally deconstructing a firm to reallocate more optimally and reduce risk. The ring fencing regulation in financial area can help to protect certain publicly beneficial activities performed by financial institutions, as well as to mitigate or reduce systemic risk and the too-big-to-fail problem inherent in large financial institutions. The ring fence’s reallocation of risk may raise important normative questions about when and how it should be used as a regulatory tool. This paper attempts to answer those questions, taking into account the ring fence regulation’s potential costs and benefits. The competing costs and benefits of using the ring fencing financial regulation, however, will be highly complex. Not only would they depend, among other things, on the ways in which the ring fencing financial regulation is structured, but they also would have to be compared to the costs and benefits of other regulatory approaches in order to mitigate systemic risk. Even though Korea needs to consider the ring fencing financial regulation for the regulatory solution to a wide range of financial and business problems, it should also consider the costs and benefits caused by the ring fencing financial regulation. In turn, this paper emphasizes in conclusion that if the ring fencing financial regulation is not structured carefully in its application to Korean banks it might inadvertently undermine efficiency and externalize costs. 법적 책임을 제한하는 링펜스(ring fence)는 금융계약의 ‘거래조건’으로 많이 활용되고 있지만 이제 ‘금융규제’의 수단으로 확대하여 사용되고 있다. 이러한 링펜스 방식의 규제는 특별한 목적을 달성하기 위한 것이므로 일반적으로 공공적 기능을 수행하는 유틸리티 회사와 은행과 같은 금융회사에 대하여 많이 활용되고 있다. 금융부문에서는 국제사회의 금융안정을 위한 노력에 발맞추어 개별국가들 역시 대대적인 금융구조개혁을 단행하고 있으며 링펜스 금융규제가 새로운 규제방식으로 부각되어 영국과 미국은 최근의 금융개혁에서 링펜스 방식의 금융규제를 대표적으로 도입하여 운영 중에 있다. 미국에서는 과거 ‘글라스 스티걸법(Glass-Steagall Act)’을 거쳐 현재 ‘볼커룰(Volcker Rule)’의 입법을 통하여 그리고 영국에서는 ‘비커스 보고서(Vickers Report)’에 따른 링펜스 규제입법을 통하여 금융회사의 영업범위에 대한 규제를 이전보다 더욱 강화시키며 링펜스 방식의 규제를 보다 확대시켜가고 있다. 우리나라도 주요국가의 금융규제 변화의 움직임과 국제사회의 압력에 따라 이러한 주요 국가들의 링펜스 규제 방식에 의한 금융규제에 대한 국내의 입법 가능성을 검토할 필요성이 더욱 커졌다. 따라서 링펜스 금융규제의 기능과 규범적 효력에 관한 입법적 검토뿐만 아니라 링펜스 금융규제 방식의 비용과 편익 역시 별도로 검토하여 실질적인 입법 가능성을 검토할 필요가 있다. 우리나라의 링펜스 금융규제의 입법 가능성을 전제로 하여 규제에 대한 비용편익 분석과 타당성 검토를 한다면 미국과 영국의 사례 검토가 도움이 된다. 미국의 경우 글라스 스티걸법과 볼커룰에서 구현된 링펜스 금융규제를 살펴보면, 링펜스 금융규제가 금융시스템을 안정시키고 시장실패와 시스템 리스크를 방지하는 중요한 기능을 수행하는 편익을 보여주고 있지만 일부 기능은 링펜스 금융규제로 인한 추가비용으로 상쇄되어 버린 부분도 있고 경우에 따라서는 금융회사별로 오히려 비효율적일 수도 있다는 점을 확인할 수 있었다. 한편 영국의 비커스 보고서에 의한 링펜스 금융규제를 살펴보면, 한편으로 링펜스 금융규제의 이행에 따르는 비용과 개별 영국은행들의 규제 이행비용이 산술적으로 존재하더라도 과거 구제금융 등의 비용과 비교하면 링펜스 금융규제의 이익이 산술적으로 비용을 초과하기 때문에 링펜스 금융규제는 상당히 의미있는 규제라고 평가받고 있다. 그러나 다른 한편으로는 그러한 편익을 완전히 인정한다고 할지라도 금융서비스시장의 완전한 구조조정 없이 은행을 분리하는 것만으로는 불완전한 보호가 될 수 있기 때문에 금융위기를 완전히 방지하는 링펜스 금융규제의 능력에는 분명히 한계가 있다는 점을 확인하였다. 따라서 우리나라에서도 링펜스 금융규제의 규범적 효력을 인식하여 이에 대한 긍정적인 입법적 검토가 필요하겠지만 글로벌 규제나 외국의 입법을 그대로 받아들이기 보다는 국내의 금융환경에 맞추어 금융규제 개혁에 수반되는 여러 가지 비용과 편익에 대한 면밀한 검토와 논의를 통하여 그 속도와 강도에 대해 보다 유연한 자세를 가질 필요가 있다.

은행의 파생상품업에 대한「자본시장과 금융투자업에 관한 법률」적용의 법적 문제

고동원 은행법학회 2008 은행법연구 Vol.1 No.2

On February 4, 2009, the Act on the Capital Market and Financial Investment Business (hereinafter the "Capital Market Act") will become effective. One of the conspicuous features of the Capital Market Act is to pursue the so-called "functional regulation" system. Thus, as long as a bank is engaged in a financial investment business, which includes financial derivative business, such a bank will be subject to the Capital Market Act. It is noted that further, on such financial derivative business, a bank is regulated by the Bank Act. Hence, unlike a financial investment company, which will be only subject to the Capital Market Act, since a bank is regulated by such two laws, it would be big burdensome to the bank. This article is to review such legal issues arising from the application of the Capital Market Act on a bank's financial derivative business. First, the Capital Market Act allows a bank to continue its financial derivative business within the scope of the currently permitted business by filing a report to the regulator, even though, in fact, it is regarded as being almost equivalent to the approval system. Currently, a bank is allowed to engage in OTC financial derivative dealing and brokerage businesses according to the interpretation of the guideline of a bank's ancillary business. In addition, although more or less controversial, a bank is permitted to engaged in overseas on-exchange financial derivative dealing and brokerage to a limited extent. Therefore, a bank will be permitted to keep on engaging in such financial derivative businesses under the Capital Market Act. This article, however, argues for permitting a bank to conduct domestic on-exchange financial derivative dealing and brokerage businesses. In addition, still the problem of a double regulation exists: in other words, the Capital Market Act as well as the Bank Act will apply to a bank's financial derivative business. In order to rectify such problem, it is suggested that first, the regulator define its function clearly on regulating such a bank's activities, and in the long term, the project of consolidating the Capital Market Act, the Bank Act and the Insurance Business Act be pursued, which will allow an universal banking system in Korea and contribute to enhancing the financial industry overall.