보험업의 범위 및 규제체계에 관한 연구－ MCFA와 관련된 미국의 판례를 중심으로 －

Federal laws traditionally preempt inconsistent state laws according to the Supremacy Clause of the United States Constitution. However, a second federal statute obfuscates the traditional preemption analysis in the context of insurance. This statute, Title 15 of the United States Code section 1012(b) ("section 1012(b)"), reverses the traditional supremacy of federal laws over state laws. Section 1012(b), enacted as part of the McCarran-Ferguson Act, is commonly referred to as the special anti-preemption rule. Section 1012(b) states in pertinent part: "No Act of Congress shall be construed to invalidate, impair, or supersede any law enacted by any State for the purpose of regulating the business of insurance, The Court's analysis of section 92 under the McCarran-Ferguson Act especially in Barnett Bank case, in fact, further clarified the exceedingly difficult task of assessing the meaning of the "business of insurance" and expanded the tools with which to evaluate conflicting state and federal statutes. First, the Court's holding that section 92 specifically relates to the business of insurance" before, and to the exclusion of, a determination of whether Florida's anti-affiliation statute was enacted to regulate the business of insurance was legitimate. Second, because the Court omitted an evaluation of whether Florida's anti-affiliation statute was enacted for the purpose of regulating the business of insurance, the Court avoided an onerous presumption originally created by the Eleventh Circuit which would have made it more difficult for federal statutes to reign supreme in the context of insurance. Third, the Court's brief mention in Barnett Bank case of the three Pireno factors clearly indicates that other courts should assign only minimal importance to them in an analysis of the first clause of section 1012(b). Insurance is primarily regulated at the state level and states’' regulatory authority has been reaffirmed on several occasions over its history, including the passage of the McCarran-Ferguson Act (MCFA) in 1945. The MCFA also established a limited antitrust exemption for insurers which is coordinated with its regulation. However, as the insurance industry has evolved, its support for state regulation has eroded and many insurers now support the creation of an Optional Federal Charter (OFC) for insurers that would preempt state regulation for federally-chartered companies.