금융회사지배구조법상 「대주주 적격성」 심사의 법적 쟁점과 개선 방안

To prevent economic power concentration, the present government has maintained the reformative perspective of gradually separating the nonmonetary institutions such as insurers, credit card companies and stock firms from the control of large conglomerates. The Korean financial authority, as part of its efforts to reform large conglomerates, seems to have been pursuing the amendment of the Corporate Governance of Financial Institution Act, reinforcing the review of major shareholder eligibility. This position has been considerably upheld in recent review processes of major shareholder eligibility. This is not largely different from the previous government’s financial policy direction under the slogan of economic democratization. With respect to the government’s understanding and responses to separate the nonmonetary institutions from conglomerates, the first thing we should pay attention to is that the poor surveillance of financial authority has been one of the causes of financial corruption. So far, the financial authority has been criticized by the National Assembly and the academia for its negligence of surveillance. In the face of such criticism, the financial authority has recently expanded its influence over financial institutions by executing laws strictly in its major shareholder review process. It seems that the authority reinforces its review stricter than before in the regular major shareholder review processes, for instance, the identification of the largest investor, strict review on major shareholder in large-scale investment bank license process, and disapproval issue in major shareholder change approval process. Moreover, the amended Act on Corporate Governance of Financial Institution submitted to the National Assembly in September 2017 is to extend the targets subject to the regular major shareholder eligibility review and righten the review requirements. In addition, in early 2018, the Financial Services Commission is also expected to propose an amendment. Against this backdrop, a new alternative can be presented through heated discussion on the relevant amendment bills, etc. at the National Assembly. On the other hand, it would be possible that, if excessive financial regulation takes place to limit financial institutions’ autonomy and creativeness in this era of 4th industrial revolution, the Korean government’s ultimate goal of securing global competitiveness in the capital market is disturbed. For stable growth of real economy including manufacturing, it is necessary to recognize that now is the very time for financial innovation and try to avoid over excessive financial restriction in any of the legal amendments and financial authority’s behavior. Instead of any regulation for the sake of regulation itself or surveillance to strengthen the financial authority’s position or influence; it should be constructive surveillance encouraging compliance in management while staying in the framework of fair competition among the financial institutions. In this situation, as a result of the major shareholder eligibility review in 2017, only 1 in 190 companies was disqualified and the issue of choosing one largest investor was debated. In consideration of such, this paper proposes the principles of review amendment as follows; First, the major shareholder eligibility review should be amended with the focus on the soundness of financial institutions while avoiding the pursuit of surveillance convenience. Second, the disparity in business type between the banking business and non-banking business should be recognized along with the disparity in requirements between major shareholder change approval and qualification maintenance and excessive same regulation principle should be avoided. Third, a reasonable balance should be maintained between free management activities of financial institutions and control over major shareholder’s authority abuse. Under these principles, law amendment seeking to expand the targets subject to major shareholder eligibility review, reinforcement of disqualification requirements and sanctions will have to be kept at the minimum. This paper argued for the expansion of review targets from one largest investor to the largest shareholder and major shareholders and viewed it was necessary to regard the specially interested persons, a main factor of largest shareholder determination, as those with economic interests, instead of those with blood relationship.