대법 2012. 3. 15 선고 2008두4619 판결에 대한 평석: 금융위 적기시정조치에 대한 사법적 통제의 한계

K. Financial Services Commission ("FSC") issued a prompt corrective action to Plus Savings Bank ("Bank") on Jan. 27, 2005 to the effect that its business was suspended for six months and an administrator was designated. The Bank, however, filed a suit against FSC to revoke such action to win its case on Jul. 22. FSC issued the same action on the same date. As the financial position of the Bank was rapidly deteriorated, the FSC initiated a bankruptcy proceedings on Nov. 25. The Jul. 22 order was also revoked on Jan. 19, 2006. On Jan. 20, 2006, the FSC cancelled the banking license. The Bank filed a suit to reinstate the banking license. The Seoul Appellate Court decided the case in favor of the Bank on Jan. 30, 2008. Most recently, however, the K. Supreme Court revoked that decision on the ground that public interest outweighs private interest. This case is a good illustration of the court's sensitiveness to the procedural protection of the interested parties. However, such approach may undermine the basic intent of the prompt corrective action in case a financial institution is not financially sound. To better understand the prompt corrective action, this paper goes back to the 1997 IMF financial crisis and the subsequent amendment of the Law for Restructuring of Financial Industry ("LRFI"). LRFI, although necessary in 1997, is contrary to the usual bankruptcy proceedings under the supervision of the judicial branch. Thus, LRFI should be revisited to define the appropriate coverage of financial institutions, triggering event for prompt corrective actions, permissible continuance of prompt corrective actions, and other procedural aspect of the FSC actions. In response to the need to protect interested parties, the judicial branch has developed some general rules on procedural protection and indiscretion. First, however, such challenges should be more seriously considered in light of the basic constitutional values and public interest. Second, if the judicial branch is not effective, but obstructive to the macro-prudential policy operations, amendment of the LRFI should be considered. Court-developed rules in fact frustrate the legislative intent of the prompt corrective actions.