우리나라 금융지주회사법의 규제법리에 관한 비교법적 연구

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.