싱가포르의 은행업규제와 그 시사점에 관한 연구

백정웅 충남대학교 법학연구소 2023 法學硏究 Vol.34 No.1

The article reviews legal aspects of banking regulation in Singapore and the lessons for the Korean legal system are as follows: (1) While the definition of banking in Singapore includes investment banking and insurance activities, that of banking in Korea is limited to commercial banking. For this reason, banks can operate securities and insurance without additional approval from the Singapore banking authority (hereinafter MAS) for those activities in Singapore. However, banks need to get approval from the Korean banking authority (hereinafter FSC) for other banking businesses in Korea. (2) The approval process for banking is divided into preliminary approval and formal approval in both countries. (3) A single banking regulator such and MAS and FSC supervises banks respectively in Singapore and Korea. (4) The capital of a bank in Singapore should be more than 1.4 trillion won, but more over 100 million won in Korea. In addition, the capital of a foreign bank operating in Singapore is replaced by the capital of the head office which the foreign bank belongs to, however, the operating fund of the foreign bank operating in Korea is the capital of the relevant foreign bank. (5) In Singapore, the bank’s common equity tier 1 capital adequacy ratio (hereinafter CET1 CAR), tier 1 capital adequacy ratio (hereinafter Tier 1 CAR) and total capital adequacy ratio (hereinafter Total CAR) is 6.5%, 8% and 10%, but in Korea, the figures are 2% lower than those in Singapore. (6) The bank’s capital conservation buffer (hereinafter CAB) and countercyclical buffer (hereinafter CB) should be maintained at 2.5% respectively in Singapore and Korea. The bank’s leverage ratio (hereinafter LR) should be kept at 3% in both countries. Also the bank’s net stable funding ratio (hereinafter NSFR) and liquidity coverage ratio (hereinafter LCR) are required to be more than 100% respectively in Singapore and Korea. Furthermore, Singapore and Korea clarify the bank’s high quality liquid assets (hereinafter HQLA) as Level 1 HQLA, Level 2A HQLA and Level 2B HQLA. (7) The minimum cash balances (hereinafter MCB) of a bank in Singapore and Korea cannot exceed 30% or 50% of their deposits respectively. (8) The bank’s investment in other companies shall not exceed 2% of the voting rights of the bank concerned in Singapore, but cannot exceed 15% of the voting rights in Korea. (9) The applicant to intend to acquire more than 5%, over 10%, from 12% less than 20%, or over 20% of bank shares in Singapore must obtain prior approval from the MAS. Korea also requires the applicant acquiring over 10%, more than 25% or over 33% of bank shares obtain approval from the FSC. However, the bank shares acquired in violation of the above regulations must be disposed or the voting rights of such bank shares are restricted in both countries. (10) In Singapore and Korea, there are three types of bank directors as independent director (outside director), executive director and non-executive director. (11) The board of directors of each bank consists of at least three directors and their terms are three years in both countries. (12) In Singapore, the chairman of the bank’s board of directors and the chief executive officer (hereinafter CEO) are prohibited, but this is exceptionally possible in Korea. (13) In Singapore, each bank must get prior approval from the MAS when appointing its directors, but there does not exist such a regulation in Korea. (14) Each bank should establish nominating committee (hereinafter NC), remuneration committee(hereinafter RC), audit committee (hereinafter AC) and risk management committee (hereinafter RMC) in both countries. (15) The RC of Singapore recommends members of the board of directors, members of various committees within the board of directors, CEO and deputy CEO, chief financial officer (hereinafter CFO), and chief risk officer (hereinafter CRO), but the RC’ recommendation in Korea is limited to outside directors (independent d...

스페인의 은행업규제와 그 시사점에 관한 연구

백정웅 한국경영법률학회 2014 經營法律 Vol.24 No.2

Many countries cross the world have had severe difficulty in financial crisis originated from the United States since 2007. The European Union (hereinafter EU) that is another pillar of the world economy has been also infected with such crisis. In particular, Portugal, Ireland, Italy, Greece and Spain (hereinafter PIIGS) is at the core of this turbulence in EU. The PIIGS has a major drawback that runs State fiscal deficits. Moreover, the PIIGS has been aggravated by the PIIGS’ poor financial regulations. This means that prudent financial regulations can lessen such deficits and reduce the financial crisis of the PIIGS. The piece examines Spain among the PIIGS and concludes as follows: (1) Specialized banks cannot take deposits from the public in Spain, but they can do in Korea. (2) There is not any express provision of the supervisory and regulatory principle in Korea and Spain. However, such an express provision needs to be provided in the legislations for the legal stability. (3) The minimum capital for banking in Korea is about four times more than that in Spain. (4) In Spain, the Minister of Economy and Finance (hereinafter MEF) decides whether the banking is authorized or not, but another regulations excluding the licensing for banking are excised by another financial regulator, the Bank of Spain (hereinafter BS). On the other hand, one financial regulator, Financial Services Commission (hereinafter FSC) excises all sorts of financial regulations in Korea. (5) There is a preliminary approval process in Korea, but not in Spain. (6) – (7) There are discriminated investment limits and limits of holding bank’s shares based on receivers and shareholders in Korea, but not in Spain. (8) An internal control mechanism is provided in both countries, but the compliance officer is introduced to Korea, not Spain. (9) A prompt corrective action is adopted by Korea, not Spain. (10) Even though an on-site inspection is provided in Korea and Spain, its expansion into other subjects including banks needs to be examined. (11) There are many detailed provisions for the cooperation of the supervisory and regulatory approach in Spain, but not in Korea. (12) While any start-up banking company cannot pay dividends to its shareholders without the BS’s permission for three years, there is any regulation in Korea. (13) Any start-up banking company cannot give credit to its directors for five years in Spain, not in Korea. (14) The BS may send interim directors to so extremely troubled banks in Spain, not Korea. On the other hand, the Korean banking authority can just recommend that the general meeting of any bank dismiss its director from his or her directorship.

한·미·EU의 보험·금융투자지주회사에 대한 비교법적 연구

백정웅 한국상사법학회 2011 商事法硏究 Vol.30 No.3

Since 2007, most of countries including Korea in the world have had tremendous difficulty experiencing financial crisis originated from the United States. Such a financial crisis in the United States resulted from the ineffectiveness of non-bank financial groups like non-bank holding companies. Because of that, many non-bank financial companies went bankruptcy and there exist some rooms. Only if such a market vacuum is superseded by Korean non-bank financial companies, it must be an opportunity for Korea. For this, the article exams the legal systems of Korean, the United States and European Union (hereinafter EU) on non-bank holding companies such as insurance holding company and financial investment holding company and learns lessons from them as follows: (1)difference of non-bank holding companies and between bank holding company and non-bank holding companies, (2) whether or not individual regulations for non-bank financial holding companies exist, (3) supervisory regulator over non-bank holding companies, (4) credits within the entire non-bank holding company system including holding company and its subsidiaries, (5) internal control system and compliance officer, and (6)concurrent office. The author concludes that the Korean non-bank financial holding company follows the global trend. However, Korea needs to prepare for alternative mechanism to prevent risk contagion from non-financial subsidiaries to other financial subsidiaries and their holding company. In this sense, the author also suggests that Korea continues to examine a reasonable measure to improve non-bank financial holding company system under the Korean Financial Holding Company Act.

공정거래법 개정안상 중간지주회사의 도입에 대한 검토 -금융지주회사법과 관련하여-

백정웅 한국상사법학회 2010 商事法硏究 Vol.29 No.3

On March 18, 2010, the intermediary financial holding company was introduced by the new Bill of the Korean anti-trust law in order to clarify the corporate governance of major Chaebols. The degree of the regulation on the entire holding company including the intermediary financial holding companies introduced by the new bill of the Korean anti-trust law is mitigated as compared to that of the regulation about the financial holding company including the intermediary financial holding company under the Korean Financial Holding Company Act (hereinafter KFHCA). Because of that, the intermediary financial holding company introduced by the new bill of the Korean anti-trust law is expected to be used far more than the use of the intermediary financial holding company under the KFHCA and there is a regulatory arbitrage between two intermediary financial holding companies. However, because these two intermediary holding companies are financial holding company, such a regulatory arbitrage must be removed. Moreover, Korea has to enforce Free Trade Agreement with the European Union (hereinafter EU) and the United States in the very near future. Therefore, Korea needs to review the information of the EU and the United States on the intermediary financial holding company and reflect the same or almost same degree of their regulatory approach to the Korean legal system.

미국 금융개혁법상 힘의 원천이론과 그 시사점에 관한 연구

백정웅 한국상사판례학회 2017 상사판례연구 Vol.30 No.4

Last July of 2010, the Dodd-Frank Wall Street Reform and Consumer Protection Act (hereinafter Dodd-Frank Act) was legislated against shifting the responsibility for the cost incurred from the bankruptcy of financial conglomerates including their subsidiaries and affiliates such as banks and savings banks onto taxpayers in the United States. Moreover, the source of strength doctrine (hereinafter doctrine) under the Dodd-Frank Act was far reinforced to get rid of moral hazard or regulatory arbitrage. On the other hand, some scholars argue that the doctrine is the ability of a financial holding company to provide financial assistance to its subsidiary in case of financial distress, not the obligation of such a holding company. However, it is clear that this opinion conflicts with the purpose of the Dodd-Frank Act because taxpayers have to bear the cost originated from the bankruptcy of its subsidiaries in the event of without the financial assistance of such a holding company to its subsidiaries. Last 2000, the Korean Financial Holding Company Act (hereinafter FHCA) passed into law modeled on the Gramm-Leach-Bliley Act of 1999. Even though the FHCA introduced the doctrine, it did not definitely declare the doctrine a legal responsibility of a financial holding company as the financial source of strength to its subsidiaries. Of course, if there is a condition between the Korean financial regulator and a financial holding company under the article 3(3) of the FHCA prescribing the responsibility of a financial holding company to provide financial and managerial assistance to its subsidiaries, the financial holding company concerned has to assume the financial and managerial responsibility of its subsidiaries in emergencies. In particular, without such a condition, there is no way for the FHCA to inforce such a holding company to provide financial assistance in the bankruptcy of its subsidiaries. In this sense, the FHCA needs to be revised as soon as possible. 금융지주회사법상 금융지주회사가 아니지만 금융회사를 지배하여 사실상 금융지주회사로서의 이익을 보는 자는 실정법상 금융지주회사가 아니기 때문에 그 규제를 받지 않고 지배에 따른 이익만 누리기 때문에 여기에는 도덕적 해이 또는 규제차익의 문제가 발생한다. 이는 損益主體의 同一性의 原理에 어긋나는 것으로 이에 대하여 금융법적인 규제가 필요하다. 이런 문제를 해결하기위하여 우리 금융지주회사법도 여러 규정을 두고 있으나 그 실효성은 의문이다. 이런 이유로 미국법제를 검토하여 우리의 시사점으로 삼으려는 것이 본 연구의 목적이다. 2010년 7월 미국은 금융개혁법을 제정하여 은행지주회사뿐만아니라 은행지주회사가 아니라 하더라도 부보예금기관 등을 지배한 자에게도 그 자회사 등의 부실이 발생하면 이에 대하여 책임을 부담하도록 함으로서 금융지주회사와 같은 금융회사의 파산 시 발생하는 비용이 납세자인 국민에게 전가되는 것을 막고 해당 금융회사 자체에서 그 비용이 충당될 수 있도록 하였다. 이를 바탕으로 현행 금융지주회사법도 미국의 금융개혁법과 같이 자회사 등을 지배해서 이익을 누렸다면 그에 따른 책임도 부담해야 한다는 원칙을 선언한 후 지배를 통해 이익을 누렸던자에게 책임을 묻을 수 있는 보다 명확한 규정을 마련해야 한다.

금융그룹 계열사간 위험전이 방지를 위한 법제도 연구

백정웅 예금보험공사 2007 金融安定硏究 Vol.8 No.2

1997년말 외환위기로 기업이 구조조정되면서 은행도 퇴출되는 것을 목격한 바 있고, 여기에 소요된 비용으로서 천문학적인 공적자금이 투여되었으나 그 회수에는 많은 어려움이 있는 것이 지금의 현실이다. 여기서 한 걸음 더 나아가 만약 은행 등 금융기관을 자회사로 둔 거대금융그룹인 금융지주회사가 파산한다면 그 부작용은 우리 경제에는 치명적일 것으로 생각된다. 따라서 이와 같은 거대금융그룹이 건전하고 안전하게 운영될 수 있는 방법의 모색으로 미국의 법인격부인론과 상호보증 및 힘의 원천이론을 고찰한 결론은 다음과 같다. 첫째 미국에서는 법인격부인론과 상호보증 및 힘의 원천이론의 적용에 대하여 법원과 학자들에 의하여 일반적으로 지지를 받고 있다는 것이다. 둘째 이와 같은 미국의 법인격부인론과 상호보증 및 힘의 원천이론을 우리법제에서 재점검한 바에 의하여도 여전히 적용하는 데에는 법리상 무리가 없다는 것이다. 끝으로 법인격부인론과 상호보증 및 힘의 원천이론이 우리법제에도 유용한 수단이라고 하더라도 이들 제도를 도입 또는 보완하기 위하여 법률의 제정 또는 개정작업 등 법제적인 정비작업이 수반되어야 것이다. 이를 통하여 거대금융그룹인 금융지주회사가 안전하고 건전하게 운영되어 해당 금융그룹도 발전하고 국가경제발전에도 일조하기를 기대해 본다. Recently many financial institutions are trying to convert their organizations into financial conglomerates through the financial holding company system in order to improve their competitiveness. However, there occur some side effects such as risk contagions between subsidiaries in financial conglomerates. Even though there are the economies of scale and scope in the financial conglomerates, the risk contagion must be prevented. In order to remove or decrease such a risk contagion under financial conglomerates, the article introduces three tools, such as the corporate veil piercing doctrine(hereinafter CVPD), the cross-guarantee provision(hereinafter CGP) and the source of strength doctrine (hereinafter SSD), reviews them critically and suggests some concluding observations as follows: First, the courts have successfully applied the CVPD, CGP and SSD to the United States and their applications have also been supported by many legal scholars. Second, such lessons from the United States can be also suitable for the Korea legal system by reexamining such tools in Korea. Third, even if such tools are suitable for Korea, some legislation or amendment is needed to be followed as adoption or modification of such tools.

더피사건 -회사성장기회론의 정당성 기준-

백정웅 한국기업법학회 2006 企業法硏究 Vol.20 No.3

The Case of Durfee-The Corporate Opportunity Doctrine Focused on the Fairness Test-Durfee v. Durfee & Canning, Inc., 323 Mass. 187, 80 N.E.2d 522 (Mass. 1948)

한국 금융지주회사에 대한 적기시정조치

백정웅 원광대학교 법학연구소 2007 圓光法學 Vol.23 No.2

Even though the prompt corrective action (hereinafter PCA) over financial institutions was adopted during the Korean financial crisis by the Act concerning the Structural Improvement of the Financial Industry (hereinafter ASIFI), the PCA has been still provided in order to resolve problems of insufficient financial institutions in the post-financial crisis. In this sense, the PCA has been debated. This arguing is also suitable in the financial holding companies in Korea. In this regard, Part Ⅱexamines the PCA system under the ASIFI and its Enforcement Decree, and the Korean Financial Holding Company Act (hereinafter KFHCA), its Enforcement Decree, Regulation on Supervision of Financial Holding Companies (hereinafter RSFHC) and Rules on the RSFHC. Part Ⅲreviews several drawbacks of the PCA system and Part Ⅵ finally recommends some resolutions to remove or decrease some problems of the PCA system for the efficacy of Korean financial holding companies.

프랑스 금융투자업 규제와 그 시사점

백정웅 한국경영법률학회 2015 經營法律 Vol.25 No.3

The financial crisis originated from the United States in 2007 hit the whole world and is still going on. In particular, Portugal, Ireland, Italy, Greece and Spain (hereinafter PIIGS) are the weakest drawbacks of such a crisis. On the other hand, France are relatively strong state in European Union (hereinafter EU). In this sense, the author reviews the French regulation over financial investment business and takes several lessons from it. The lessons for the Korean legal system are as follows: First, Korea and France have their definitions of financial investment activities in substantive enactment. Second, Korea and France do not have any express provision for the purpose or principle of the regulation and (or) supervision against their financial investment activities. Third, single financial authority controls over the financial investment business in Korea while the ACP and AMF supervise financial investment companies in France. Fourth, Korea has preliminary authorization for the financial investment business but France do not. Fifth, even if Korea has different approval processes to deal with electronic money depending upon financial institutions, such as banks, financial investment companies and insurance companies, France do not any other dis- crepancies among financial institutions (or financial companies). Sixth, the amount of minimum capital for financial investment companies in Korea is far more than that of minimum capital for financial investment companies in France. Seventh, there are the board of directors (unitary system) and management board and supervisory board (dual system) in France and whether which system is selected is up to companies. Similarly to such the French legal system, there is also the board of directors (unitary system) and monitoring board and executive officer (dual system) in Korea. Eighth, France has to consider the balance of the representation between men and women in the board of directors or management board and supervisory board. On the other hand, Korea does not. Ninth, recently, the Korean government is trying to separate compulsorily the offices of the chairman of the board of directors and chief executive officer (CEO). However, the French financial companies have an option about whether which the separation or the aggregation between such offices is chosen. Tenth, the French regulation of concurrent offices in financial investment companies imposes on the number of time to be a director. However, the Korean supervision against concurrent offices in financial investment companies does on the nature of the office concerned to be a director. Eleventh, all the members of the board of directors’ audit committee must be professional in accounting or financial field in France while just one is required to be an accounting or financial expert in Korea. Twelfth, there are the internal control system and compliance function in Korea and France. However, the Korean legislation provides that the compliance officer is charged with the task of such a compliance function while the French legislation does not. Thirteenth, there is a prompt corrective action over financial investment companies in Korea, not France. However, there is still an exceptional suspension in Korea. Fourteenth, the Korean legal system for the cooperation between financial regulators or a financial regulator and another domestic regulators is disappointing compared to the French cooperative system. For the last time, the Korean legal system needs to consider the international trends in the financial investment activity regulation and has to be interlocked with the international standards.

금융산업에 대한 규제의 새로운 패러다임 -유럽연합의 경우를 중심으로-

백정웅 한국경영법률학회 2010 經營法律 Vol.20 No.2

Since August 2007, many countries including the Republic of Korea (hereinafter ROK) have had a severe hard time in the financial crisis originated from the United States. Even though they introduced lots of plans in order to overcome such a tragedy, many plans do not work yet. Such crisis has proven that the Korean unique regulation against the financial industry not connected with financial regulatory level of the United States and the European Union (hereinafter EU) does not work any more. In other words, the level of the Korean financial regulation and supervision needs to be just or almost inter-locked with those of the United States and the EU. For this, we need to examine the important plans of the United and the EU and take lessons from them. However, the author reviews only the EU's regulatory and supervisory approach in this article. The piece shows that while the EU has a plan to intensify the financial regulation and supervision, the ROK mitigates the financial regulation and supervision. Even if the big pictures between the ROK and the EU are different, the levels of the sub-provisions of the two countries’ financial regulation and supervision might be determined as opposed to the big picture of the two countries’ financial regulation and supervision. In this sense, the study on the sub-provisions of the two countries’ financial regulation and supervision must be subsequent to this article which reviews the big picture of the two countries’ financial regulation and supervision.