금융규제법상 후순위 채무의 자기자본 인정 요건 및 그 타당성에 관한 연구 – 은행, 증권, 그리고 보험 권역을 중심으로 -

The Financial Regulation Law of Korea requires financial institutions in the banking, securities, and insurance sectors to maintain a certain level of equity capital ratio as part of regulating financial soundness, and classifies subordinated bonds that meet certain requirements as equity capital.  This article has looked into the requirements for subordinated bonds to be recognized as equity capital under the Financial Regulatory Law, and discussed whether such requirements are appropriate, whether there is reasonableness in requiring different requirements for each region, and whether there is any part that needs to be revised. In particular, this article included discussions on the Korean-Insurance Capital Standard (K-ICS), which was recently introduced in the insurance sector, and discussions on subordinated debt under the Financial Regulation Act for tax purposes. In conclusion, even considering the uniqueness of individual regions, there is a need to partially amend or supplement the following differences in the supervisory regulations of each region. ① The Regulations on Supervision of Banking Business shall also have an explicit provision that a subordinated creditor shall not exercise the right of set-off. ② Although the early redemption condition of the subordinated bonds is the subordinated creditor's right, in practice, the early redemption condition is being used as means for investors to pressure the subordinated debtor to repay the debt. Therefore, despite the form of perpetual bonds, subordinated bonds are actually serving as bonds with a five-year maturity. Considering this phenomenon, there is a need to revise the current supervisory regulation that allows financial institutions to exercise their early repayment rights five years after issuing subordinated bonds. ③ Even if we admit that the current provisions on early repayment terms are maintained, there is a need to amend the current Supervisory Regulations, which more strictly stipulate the requirements for early repayment only for subordinated bonds issued by insurance companies than other areas. ④ In addition, given that there is no limit on the inclusion of subordinated bonds into equity capital in the banking sector, it is unreasonable to propose a stricter restriction on the limit on the inclusion of subordinated bonds into equity capital only in the insurance sector. In particular, the current Insurance Supervisory Regulations only impose an additional 5% limit on subordinated bonds that meet the requirements for contingent capital securities. Considering the intent of the Regulations, it would be reasonable to impose a greater limit or exclude subordinated bonds from the limit.