금융기관 부실에 대응한 특별정리제도의 필요성과 제도설계상 법적쟁점

The SVB resolution in the US and the merger of Credit Suisse in Switzerland have raised the need for a special resolution regime. The current resolution regime is based on the assumption of insolvency, which means that intervention for resolution purposes is not allowed unless net worth is negative, and the process is complicated. However, waiting for the net worth of a crisis financial institution to become negative may increase systemic risk in the market. Therefore, it is necessary to consider a special resolution regime that provides for early intervention and rapid resolution, which is different from the normal resolution process. D-SIFIs should be the first to be considered for a special resolution regime. Special requirements are needed to ensure that a financial firm's net worth is not negative and that intervention for resolution purposes is possible. Special requirements are defined as a financial institution that is unlikely to be able to recover on its own without a special loan from the central bank or funding from public funds, and is likely to pose a systemic risk. To make this determination, a provisional valuation is required, which requires an independent assessor and evaluation criteria. The decision on whether to initiate a special resolution process based on the results of the provisional valuation should be made by a separate committee composed of members of the FSC and external experts. The results of the valuation should be verified by formal valuation at a later date. In the case of a liquidation despite a positive net worth, the issue of infringement of property rights of shareholders is raised. Therefore, at a minimum, shareholders should be guaranteed the liquidation value in accordance with the NCWOL principle, and if the value is not guaranteed, compensation should be paid to the extent of the guaranteed liquidation value, because infringement of property rights may constitute expropriation. The initiation of a special resolution regime can be contested by way of an appeal. In addition, if there has been a violation in the initiation of the proceedings and the process, state compensation may be claimed. Therefore, in order to reduce the likelihood of litigation, it is important to comply with the procedures and ensure the independence of the provisional valuation.