금융산업에 있어서 전문규제기관과 일반규제기관과의 관계 - 이중규제의 문제와 영국의 사례를 통한 해결방안의 모색 -

The finance committee puts its aims at serving to the stability of financial market and establishing a solid credit morale and fair financial dealing practices as a professional regulator while the Fair Trade Commission is a general regulator aiming at guaranteeing market efficiency by regulating competition-restrictive behaviors in the markets covering all industries. Therefore, the relationships between the two appear as duplicated authority. Such duplicated authority generally takes on double regulation; for example, there happens a double burden in view of those who are regulated when the Fair Trade Commission[FTC hereinafter] takes another measure on the measure already taken by the finance committee, which ultimately appears as an issue of double sanctions. Recently, such an issue of double sanctions has been gathering strength as a sharpening issue. Accordingly, both agencies-financial committee and FTC are making efforts to be in mutual cooperation with each other including the exchange of MOU memorandum of understanding]to prevent double regulations, but due to the lack of several conditions and contents, the realities are that the possibility of double regulation is not dissolved yet. The act of sanctions is a concomitant consequence to the occurrence of violation of laws and regulations in the process of supervision and it is treated as the most important case in that it could have a serious influence on people's rights. Currently, the most basic reason for double sanctions raised as a question between both agencies is caused by the acts of administrative guidance. Thus, to find solution to it, the currently-conducted supervisory method should be switched to that of an administrative act acknowledged having dispositional validity instead of administrative guidance. In addition, in time of conflict of authority between the financial committee and FTC, there happens a problem whether this case could be applied by a dispute for authority guaranteed by institution-acted dispute & lawsuit on the law on administrative litigation, or a dispute for authority guaranteed by the Institution and the laws on the Constitutional Court. However, both agencies' disputes for authority fail to be equipped with the requisites for institutional litigation specified in administrative litigation law and doesn't meet the requisites for authority dispute specified in the Institution and Institutional Court, so it is not likely that the conflict of authority between both parties could be easily solved by lawsuits. Ultimately, it has to be solved by lawmaking and The British case where authority relationships between the financial authorities and fair trade authorities was solved by lawmaking is worthy to be referred to as a successful one. The British FSA[Financial Service Agency] and OFT[Office of Fair Trading] are solving problems of double regulations through reciprocal cooperation and check as a professional regulator of financial industry and a general regulator respectively. In principle, it's FSA who has jurisdiction over anticompetitive behaviors in financial industry, but OFT has authority to review whether general regulations and administrative behaviors of FAS are anticompetitive, and if they judge them to be anticompetitive, they can demand a correction of it. Such process, with a notification to the Ministry of Finance and the Parliament together with the announcement to the press, imposes an obligation of self-surveillance on their own lest FSA should arouse anticompetitive behaviors in time of carrying out their supervisory behaviors. In addition, both agencies has already set up MOU and Action Plan as their substantial executional plan, on the basis of which both agencies are doing the sharing of information, unification of administrative procedures, the picking out of a long-term research project, and research execution. In the light of the British case, our legislative task should be to establish a system for cooperation and mutual check between both agencies through the revision of laws, and the establishment of the substantial action plan also should be based on legislative ground. In addition, by adding a vice commission head to the organization of FTC, the reviewing process as to whether to arouse anticompetitive consequences will be necessary from the very beginning of financial supervisory policy making process. Since the foreign currency crisis, our financial market has been equipped with self-inspecting capacity qualitatively along with its size growth. Further, switching toward global market economy may put much more emphasis on the role of the private sector. The issue of double regulations of regulatory authorities is not limited only to financial industry, but it is also be posed as an acute task in the period to come in the field of public law for economy.