글로벌 금융위기와 금융규범의 대응방안에 관한 논고

This article reviews and reflects on the causes of the 2008 global credit crisis (the “global crisis”) and the responses of financial laws and regulations. The causes of the global crisis are analysed as being the accumulated consequences of multiple factors, including macro-economic imbalances, the failure of risk management by systemically important financial institutions, and lapses of the relevant prudent regulations and supervisions. All these factors are facilitated by the tools of complex financial products, such as credit risk transfer products including securitisation,collateralised debt obligations and credit derivatives. While each factor plays a part in having contributed to the systemic meltdown of financial markets, it is suggested that the concentration of risk through the process of excessive leverage and exposure by financial institutions should be considered as the defining factor of the global crisis. In view of the regulatory responses to the global crisis, this article presents an analysis of the Basel III framework and certain regulatory issues currently being discussed in tandem. The five pillars of Basel III consist of strengthening capital,enhancing risk coverage, mitigating leverage, reducing pro-cyclicality and addressing liquidity management. Based on a perusal of the causes and corresponding international regulatory responses, three major issues of financial laws and regulations particularly relevant to the context of Korean financial markets have been selected as responses to the potential problem of excessive leverage and exposure by financial institutions. These proposals seek to enhance the systemic transparency of Korean financial markets by assessing: (i) how to systemically approach financial laws and regulations based on the concept of ‘risk transfer’ function in financial markets; (ii) how to curb the moral hazards of financial institutions conducting ‘risk transfer’; and (iii)how to effectively deal with regulatory arbitrage opportunities without suffocating financial innovation. The flobal crisis has shown the nature and adverse impact of the undisclosed,excessive and interconnected risks in the financial system. Accordingly, the underpinning principles of legal and regulatory responses at both the international and domestic level should focus on enhancing transparency through the complete and accurate disclosure of existing and newly evolving risks. The complete and accurate disclosure of ‘risks’ should assess financial institutions and complex financial products in terms of ‘leverage’ and ‘exposure’, with insightful consideration of the potential areas of regulatory pitfalls. This article concludes that the function of ‘risk transfer’ in converged financial markets should be to provide a conceptual framework within which to conduct the systemic approach of financial laws and regulations under the dual context of both global and Korean financial markets. Legal and regulatory responses should collectively serve as effective tools to ensure that risks will be prudently originated and underwritten, and disclosed and distributed appropriately by financial institutions serving to be trustworthy originators, managers and facilitators of ‘risk transfer’for the common good.