금산분리의 법리 - 법적 권리 간 이해상충의 경제적 인센티브와 충돌의 사회적 비용을 중심으로

This paper tries to legalistically rather than political-economically interpret the separation of banking and commerce. The political-economic interpretation focuses on the results of combination of two capitalists: banking and commerce, but fails to understand the inner mechanism of the combination. The legalistic interpretation clarifies two different legal rights that will inevitably collide: controlling right (COR) based on jus in re propria and creditors’ right (CRR). Strictly speaking, collision between COR and CRR does not require two different capitalists. According to law theory of civil law rights, COR dominates CRR. Therefore, COR may pursue excessive risks since it only should take limited liability, and the excessive risks over limited liability will be transferred to creditors who are banks, and finally to depositors and investors. The legalistic interpretation shows that the separation principle resolves the possibility of collision between COR and CRR, not necessarily between two capitalists. There may be legally appropriate combination between two capitalists without collision between COR and CRR under the separation principle, and also may be a collision between COR and CRR in a capitalist, without a combination between two capitalists.