국제 기준의 채권자손실분담제도의 한국 내 입법 방안: 베일인 대상 채권의 구체화 및 법적 타당성을 중심으로

Since 2007~2009 global financial crisis, Basel Committee has concentrated on the elements and legal framework requirements that jurisdictions need to muster with their resolution regime for bail-in within resolution to be effective. The FSB has consulted on how to apply bail-in as a resolution tool in detail. FSB introduced statutory bail-in powers as a resolution tool in its recommendations on legal framework for bank resolution, the “Key Attributes of Effective Resolution Regimes.” Bail-in within resolution is an additional resolution tool that could be applied in combination with other resolution tools, satisfying the KAs for a robust resolution regime. In the context of loss absorbing tools within resolution process, there were two noted approaches proposed: First, the proposal of the “Non- Viability Contingent Capital (NVCC)” is to require all non-common equity Tier 1 and Tier 2 instruments issued by banks to include a clause of mandatory written-off or conversion into common equity on the point of trigger events; Second proposal is the statutory ‘bail-in’ to provide ‘strong arm’ powers to supervisory/regulatory authorities for banks to write down or convert into equity or debt instruments under certain conditions. Above two systems are paid attentions for the resolution plans that can replace the public fund injection since global financial crisis. However, related to these systems, there are problems such as the range of responsibility for the insolvency, and the conflicts with the domestic laws including consitutional law. In order to mitigate tough legal challenges and strong political opposition it may face, a clear and convincing legal procedure of “bail-in” is critical to its effectiveness. Non-viability address in the document, “Minimum requirements to ensure loss absorbency at the point of non-viability” could be considered triggering event although the meaning of “non-viable” is not clearly defined and left to each national authority to determine. The non-viability in this context is different from the non-viability of a “gone” or “gone concern” which is relevant to insolvency or liquidation. Many support in principle that bank’s regulatory capital should absorb losses, but loss aborting capital structure has to be designed with deep consideration of significant risks in the context of bank capital structure. Regulators have to keep in mind the principles such as respect for the sanctity of existing contracts, maintaining the hierarchy of the capital structure, and ensuring that future bank debt is adequate for the investor base. The minimum discretion is allowed to regulators in triggering a bail-in. It should be applied only at the moment of non-viability, accompanied by transparent triggering and consequences. Insolvency or restructuring of financial institutions requires more strict procedure in its resolution than other corporations. Related to the problematic situation of the financial institutions, because the identifying illiquidity from insolvency of them is generally difficult and the interest parties such as debtors and creditors are many, and the situations are complexes, highly professional skills are required to resolve the problems. The legal and operational issues have been examined by the FSB in the context of both contractual bail-in instruments and on statutory bail-in mechanisms. Basel Committee concentrates on the elements and legal framework requirements that jurisdictions need to muster with their resolution regime for bail-in within resolution to be effective. In this article, the primary scope of my research is limited to the constitutional law of Korea in order to review relevant conflicting issues when the bail-in proposals are implemented into Korea. Last but not least, I will study how depositor preference regime would impact on the priority ranking of claims and priority ranking of loss absorbency vise versa, suggesting the potential feature of bail-in regime with proper consideration for the deposit taking institutions of Korea.