프랑스 금융투자업 규제와 그 시사점 (The French Financial Investment Activity Regulation and Its Lessons)

서지정보

· 발행기관 : 한국경영법률학회
· 수록지 정보 : 경영법률 / 25권 / 3호 / 283 ~ 314페이지
· 저자명 : 백정웅

초록

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.

영어초록

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.

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