금융산업에 있어서 전문규제기관과 일반규제기관과의 관계 - 이중규제의 문제와 영국의 사례를 통한 해결방안의 모색 - = Relationships between Sectoral Regulator and General Regulator in Financial Industry Centering on Double Regulations

다국어 초록 (Multilingual Abstract)

The finance committee puts its aims at serving to the stability of financial market and establishing a solid credit morale and fair financial dealing practices as a professional regulator while the Fair Trade Commission is a general regulator aiming at guaranteeing market efficiency by regulating competition-restrictive behaviors in the markets covering all industries. Therefore, the relationships between the two appear as duplicated authority.
Such duplicated authority generally takes on double regulation; for example, there happens a double burden in view of those who are regulated when the Fair Trade Commission[FTC hereinafter] takes another measure on the measure already taken by the finance committee, which ultimately appears as an issue of double sanctions.
Recently, such an issue of double sanctions has been gathering strength as a sharpening issue. Accordingly, both agencies-financial committee and FTC are making efforts to be in mutual cooperation with each other including the exchange of MOU memorandum of understanding]to prevent double regulations, but due to the lack of several conditions and contents, the realities are that the possibility of double regulation is not dissolved yet.
The act of sanctions is a concomitant consequence to the occurrence of violation of laws and regulations in the process of supervision and it is treated as the most important case in that it could have a serious influence on people's rights.
Currently, the most basic reason for double sanctions raised as a question between both agencies is caused by the acts of administrative guidance. Thus, to find solution to it, the currently-conducted supervisory method should be switched to that of an administrative act acknowledged having dispositional validity instead of administrative guidance.
In addition, in time of conflict of authority between the financial committee and FTC, there happens a problem whether this case could be applied by a dispute for authority guaranteed by institution-acted dispute & lawsuit on the law on administrative litigation, or a dispute for authority guaranteed by the Institution and the laws on the Constitutional Court. However, both agencies' disputes for authority fail to be equipped with the requisites for institutional litigation specified in administrative litigation law and doesn't meet the requisites for authority dispute specified in the Institution and Institutional Court, so it is not likely that the conflict of authority between both parties could be easily solved by lawsuits.
Ultimately, it has to be solved by lawmaking and The British case where authority relationships between the financial authorities and fair trade authorities was solved by lawmaking is worthy to be referred to as a successful one. The British FSA[Financial Service Agency] and OFT[Office of Fair Trading] are solving problems of double regulations through reciprocal cooperation and check as a professional regulator of financial industry and a general regulator respectively.
In principle, it's FSA who has jurisdiction over anticompetitive behaviors in financial industry, but OFT has authority to review whether general regulations and administrative behaviors of FAS are anticompetitive, and if they judge them to be anticompetitive, they can demand a correction of it. Such process, with a notification to the Ministry of Finance and the Parliament together with the announcement to the press, imposes an obligation of self-surveillance on their own lest FSA should arouse anticompetitive behaviors in time of carrying out their supervisory behaviors. In addition, both agencies has already set up MOU and Action Plan as their substantial executional plan, on the basis of which both agencies are doing the sharing of information, unification of administrative procedures, the picking out of a long-term research project, and research execution.
In the light of the British case, our legislative task should be to establis...

다국어 초록 (Multilingual Abstract)

The finance committee puts its aims at serving to the stability of financial market and establishing a solid credit morale and fair financial dealing practices as a professional regulator while the Fair Trade Commission is a general regulator aiming at guaranteeing market efficiency by regulating competition-restrictive behaviors in the markets covering all industries. Therefore, the relationships between the two appear as duplicated authority.
Such duplicated authority generally takes on double regulation; for example, there happens a double burden in view of those who are regulated when the Fair Trade Commission[FTC hereinafter] takes another measure on the measure already taken by the finance committee, which ultimately appears as an issue of double sanctions.
Recently, such an issue of double sanctions has been gathering strength as a sharpening issue. Accordingly, both agencies-financial committee and FTC are making efforts to be in mutual cooperation with each other including the exchange of MOU memorandum of understanding]to prevent double regulations, but due to the lack of several conditions and contents, the realities are that the possibility of double regulation is not dissolved yet.
The act of sanctions is a concomitant consequence to the occurrence of violation of laws and regulations in the process of supervision and it is treated as the most important case in that it could have a serious influence on people's rights.
Currently, the most basic reason for double sanctions raised as a question between both agencies is caused by the acts of administrative guidance. Thus, to find solution to it, the currently-conducted supervisory method should be switched to that of an administrative act acknowledged having dispositional validity instead of administrative guidance.
In addition, in time of conflict of authority between the financial committee and FTC, there happens a problem whether this case could be applied by a dispute for authority guaranteed by institution-acted dispute & lawsuit on the law on administrative litigation, or a dispute for authority guaranteed by the Institution and the laws on the Constitutional Court. However, both agencies' disputes for authority fail to be equipped with the requisites for institutional litigation specified in administrative litigation law and doesn't meet the requisites for authority dispute specified in the Institution and Institutional Court, so it is not likely that the conflict of authority between both parties could be easily solved by lawsuits.
Ultimately, it has to be solved by lawmaking and The British case where authority relationships between the financial authorities and fair trade authorities was solved by lawmaking is worthy to be referred to as a successful one. The British FSA[Financial Service Agency] and OFT[Office of Fair Trading] are solving problems of double regulations through reciprocal cooperation and check as a professional regulator of financial industry and a general regulator respectively.
In principle, it's FSA who has jurisdiction over anticompetitive behaviors in financial industry, but OFT has authority to review whether general regulations and administrative behaviors of FAS are anticompetitive, and if they judge them to be anticompetitive, they can demand a correction of it. Such process, with a notification to the Ministry of Finance and the Parliament together with the announcement to the press, imposes an obligation of self-surveillance on their own lest FSA should arouse anticompetitive behaviors in time of carrying out their supervisory behaviors. In addition, both agencies has already set up MOU and Action Plan as their substantial executional plan, on the basis of which both agencies are doing the sharing of information, unification of administrative procedures, the picking out of a long-term research project, and research execution.
In the light of the British case, our legislative task should be to establish a syst...

참고문헌 (Reference)

1 권영성, "헌법학원론" 법문사 2007

2 박균성, "행정법론(상)" 박영사 2008

3 권오승, "자유경쟁과 공정거래" 법문사 2002

4 석종현, "일반행정법(상)" 삼영사 2005

5 이병윤, "은행산업 경쟁정책관련 법규정 개선방안" 16 (16):

6 이성복, "영국의 금융검사·감독체계" 금융감독원 2004

7 최승필, "아시아통화공동체의 기반으로서 중앙은행의 독립성" 12 (12):

8 공정거래위원회, "부당공동행위 및 사업자단체금지행위 관련 심결정리 및 분석" 2007

9 Richard A. Posner, "미국독점규제법(Antitrust Law)" 다산출판사 2003

10 "기타 공정위 각 심결자료, 보도자료, 수시브리핑 자료."

11 이광윤, "기관소송에 있어서의 쟁점" 고시계 1994

12 홍정선, "기관소송" 고시계 1991

13 신봉기, "기관 분쟁 및 쟁송에 관한 연구" 16 (16):

14 이병윤, "금융회사 불공정거래에 대한 규제체계" 한국금융연구원 2007

15 홍준형, "금융행정의 법적구조와 개혁방향" 29 (29):

16 석종현, "금융행정영역에서의 법률유보 및 위임법리에 관한 고찰" 17 :

17 금융감독위원회, "금융감독 선진화 로드맵 참고자료" 2007

18 공정거래위원회, "공정위-금감위 공동으로 금융회사에 대한 규제 효율화방안 마련" 2007

19 임영철, "공정거래법" 법문사 2007

20 신현윤, "경제법" 법문사 2007

21 이원우, "경제규제와 공익" 47 (47):

22 전경련, "경쟁제한적 행정지도의 문제점과 개선과제" 2008

23 Office of Fair Trading, "The roles and responsibilities of the Financial Services Authority and the Office of Fair Trading" London 2007

24 Peter D. Spencer, "The Structure and Regulation of Financial Markets" Oxford Uni. Press 2000

25 FSA, "Principles-based regulation" April 2007

26 Charles Goodhart, "Financial Regulation, Routledge" London 1998

27 John Casanova, "Establishing internet credit card programmes in the United Kingdom" 16 (16): 2001

28 Office of Fair Trading, "Delivering better regulatory outcomes - A joint FSA and OFT Action Plan" London 2007

29 Jeremy Simmonds, "Bankers' Documents and the unfair terms in consumer contracts regulations 1999" 17 (17): 2002

30 Hartmut Maurer, "Allgemeines Verwaltungsrecht" M?chen 2004