독일 금융투자업규제와 그 시사점

The financial crisis originated from the United States in 2007 hit the whole world and is still going on. In particular, Portugal, Ireland, Italy, Greece and Spain (hereinafter PIIGS) are the weakest drawbacks of such a crisis. On the other hand, Germany is relatively strong state in European Union (hereinafter EU). In this sense, the article reviews the German regulations over financial investment activities and takes its several lessons. The lessons for the Korean legal system are as follows:First, Korea and Germany have the definitions of financial investment activities in substantive enactment respectively. Second, Korea and Germany do not have any express provision for the purpose or principle of their financial investment regulation and (or) supervision. Third, single financial authority controls over the financial investment activities in Korea and Germany. Fourth, Korea has preliminary authorization for the financial investment businesses but Germany does not. Fifth, he amount of minimum capital for financial investment businesses in Korea is far more than that of minimum capital for financial investment activities in Germany. Sixth Korean and German regulations against the ownership in financial investment companies does not depend on who the owners are. Seventh, there are the board of directors (unitary system) and management board and supervisory board (dual system) in Germany and whether which system is selected is up to the companies concerned. Similarly to the German system, there is also the board of directors (unitary system) and monitoring board and executive officer (dual system) in Korea. Eighth, Germany has to consider the balance of the representation between men and women in the board of directors or management board and supervisory board. On the other hand, Korea does not. Ninth, recently, the Korean government is trying to separate compulsorily the offices of the chairman of the board of directors and chief executive officer (CEO). However, German financial investment companies has an option about whether which the separation or the aggregation between such offices is chosen. Tenth, the German regulation of concurrent offices in financial investment companies imposes on the number of time to be a director. However, the Korean supervision against concurrent offices in financial investment companies does on the nature of the office concerned to be a director. Eleventh, the German and Korean financial regulator may demand a different director in financial investment companies. Twelfth, there are the internal control system and compliance function in Korea and Germany. However, the Korean legislation provides that the compliance officer is specifically charged with the task of such a compliance function while the German legislation does not provide the specified person for the compliance function. Thirteenth, there is an on-site inspection over financial institutions in Korea and Germany. Fourteenth, there is a prompt corrective action over financial companies in Korea, not Germany. However, there is still an exceptional suspension in Korea. Fifteenth, the Korean system for the cooperation between financial regulators or a financial regulator and another domestic regulators is disappointing compared to the German cooperative system.