금융규제에 있어 실질주의: 실질규제의 방법과 한계

Norms regulate the dynamic reality with its static formality. A gap between the norm and reality is inevitable. While the legal study must initially provide legal interpretation to fill in such gap, when such interpretation has limits, the legal study has an obligation to provide guidance on new legislation. In this paper, I reviewed that there is an unavoidable gap between legal form and economic reality and discussed methods and limitations of substance over form regarding financial regulations. It is desirable to narrow the gap between law and reality, but there are certain limitations to such efforts. In this regard, a general rule of substance over form on financial regulations might be an issue, but a general rule approach may not be necessary considering legal consistency with other public regulations as well as a technical difficulties for legislation itself. Therefore, substance over form on financial regulations is a matter of legal interpretation and not an enactment. In this paper, I reviewed many cases which avoid regulations through changing the regulated subject or manner of the transaction. Through the analysis of these cases, manners and limitations of substantial regulation are analyzed as below: Substance over form on financial regulations could be applied actively to the case while completely ignoring the purpose of the regulation. But, if there is any other legal or economic purpose in selecting the legal subject or manner of the transaction, it should be respected as a manifestation of free will. In a case where there is detailed regulations, substance over form cannot be applied against literal description of law. There is also a need for caution in applying substance over form due to a technical problem in enactment. Lastly, the principle of legality should be a threshold limit in applying the substance over form doctrine.