금융위기와 금융법제 - 미국의 장외파생상품규제를 중심으로

Recently it is an issue of hot debate what causes the current financial crisis situation. The subprime mortgage crisis, which was deemed a domestic economic problem in the US market, has rapidly spread to the global financial market. And we are also under its direct or indirect influence. The crisis involves a process of expanding and reproducing the subprime mortgage risks through the securitization and derivatives techniques. The main players in the process were investment banks and hedge funds. From the viewpoint of financial regulatory laws, the current subprime mortgage crisis resulted, partly at least, from the regulation failure. In particular, there exists regulatory loopholes in the US financial services regulation for OTC derivatives and hedge funds. The Capital Markets and Financial Investment Services Act 2007, which is known to be enabling market participants to get US-style investment banking business, modelled after UK-style financial regulatory laws instead of US-style institution and product-based regulation. As a result, there could be no regulatory loophole on the dealing of OTC derivatives in Korea. We should clearly distinguish US-style investment banking business model from the UK-style financial regulatory law. Under the current Act on the Asset Securitization 1998 and the Capital Markets and Financial Investment Services Act 2007, it is not possible to have the risk expansion and reproduction process in Korea considering the tight regulation on the use of securitization and derivatives techniques. It should be noted that it is still of use for our economic system to have modern financial techniques such as securitization and derivatives. And the Capital Markets and Financial Investment Services Act 2007 is modelled after the UK financial law system rather than the US system. As the level of capital market regulation in Korea is still relatively strict and inflexible, we should maintain the main theme of financial deregulation as a matter of financial policy.