외국은행 국내지점에 대한 규제·감독의 개선 방향

In Korea, foreign bank branches (FBBs or a FBB) are regulated by the Bank Act, which also applies to a bank in a corporate type, although FBBs are not corporations. Article 59 (1) of the Bank Act states that a FBB is regarded as a “bank.” Under the Bank Act, a “bank” is defined as a “juridical person” (including a corporation) which engages in deposit-taking and lending business. However, a FBB is a “branch,” not a “corporation,” in terms of a legal type. Thus, if we apply the principle of a “regarded bank”, it may be argued that the regulations on FBBs seem to be unreasonable. Accordingly, we may need to find the reasonableness in the perspective of regulating the FBBs. This article seeks to analyze the relevant legal issues on the FBB regulations, based on the different approach on regulating FBBs. First of all, this article particularly discusses the keen issue of recognition of the “capital” of a FBB; whether the capital of a FBB's head office should be recognized or the current “operating fund” of a FBB should be regarded as a capital of a FBB. In this regard, this article suggests that in order to recognize the capital of a FBB's head office, some preconditions should be met, such as the ‘pledged asset requirement,’ the ‘minimum asset maintenance requirements,’ and the ‘head office's strength of support assessment.’ In particular, this article emphasizes that creditors' claims against the FBB's head office in case of a FBB's bankruptcy should be legally guaranteed through the enactment of a FBB home country's statutes or the memorandum of understanding between a FBB's home country and the host country. Second, this article suggests that the Bank Act be revised in order to clarify the relevant provisions of the Bank Act expressly excluding the application of certain provisions to FBBs. Third, this article examines the issue of delegating a FBB's core and back-office businesses to its head office, suggesting that the delegation of certain core businesses of a FBB, such as approval of loan decision and execution, to its head office, should be permitted. Fourth, in case where a FBB provides its customers' financial information to its head office or its affiliated companies under the real name law, a one-time “blanket” consent method should be allowed, rather than the current “case-by-case” method. Fifth, the regulations on offshore outsourcing of data processing should be more clarified. Sixth, the ‘domestic asset maintenance requirements,’ currently covering only the assets equivalent to a FBB's “operating fund,” should be strengthened, by domestically maintaining the assets equivalent to a FBB's operating fund and liabilities. Seventh, the issue whether the credit provision by a FBB to its head office be regulated in terms of a credit-line must be clarified. Eighth, the requirements for establishment of FBBs should be differentiated depending on the proposed business scope; for example, a FBB planning to mainly engage in money remittance or transfer business, the establishment requirements should be alleviated. Finally, the regulations of a minimum ratio on mandatory extension of credits to small-and medium-sized companies under the central bank's rules should be improved by abolishing such restrictions if a FBB does not borrow the funds from the central bank.