포르투갈의 은행업규제와 그 시사점에 관한 연구 (The Study on the Portuguese Banking Regulation and Its Lessons)

서지정보

· 발행기관 : 한국기업법학회
· 수록지 정보 : 기업법연구 / 27권 / 4호 / 441 ~ 467페이지
· 저자명 : 백정웅

초록

Since the second half of 2007, so many countries have been difficulty in financial crisis originated from the United States. In particular, Portugal, Ireland, Italy, Greece and Spain (hereinafter PIIGS) who are heavily invested by Germany and France as leading countries in the European Union (hereinafter EU) are the center of the storm. If the PIIGS cannot pay their debts, this is not just about it anymore. Furthermore, there are also reports that the PIIGS’ insufficient financial regulations over their financial institutions worsen the current situation of the PIIGS. However, if there are sufficient financial regulations in the PIIGS, the current situation of the PIIGS will be better. In this sense, the author examines the financial regulation focused on the banking regulation of Portugal and is attempting to elicit useful lessons for the Korean legal system as follows:(1)There are different authorization systems required for financial institutions to deal with electronic money in Korea. Because of possible regulatory arbitrage, such different authorization systems need to be reviewed. (2)The minimum capital for starting banking business in Korea is about four times more than that in Portugal. Because the Korean minimum capital for beginning banking is excessive, it also needs to be examined. (3)Because there is a preliminary approval process for banking in Korea and such a process may be an overlapping regulation, it needs to be reexamined. (4)For the efficient regulation of a banking regulator, the central bank such as the Bank of Korea who supplies money needs to control banks. (5)-(6)There are different investment limits and limits of holding bank’s shares depending on receivers and shareholders in Korea. Because banks will be affected by receivers or shareholders, such different limit systems are more efficient than those of Portugal. However, there is potential regulatory arbitrage in different limit systems, such different limit systems need to be reviewed. (7)Because the internal control mechanism will be introduced with compliance officer, the efficiency of internal control mechanism is far more than that of Portugal. However, can the compliance officer effectively monitor the bank that elected himself? So the compliance officer needs to be reviewed. (8)On the contrary to Portugal, there is a prompt corrective action in Korea, which is very useful for a single bank or a bank belonging to Group such as a holding company. However, the delay clause of such a prompt corrective action needs to be removed or reexamined because the delay of a prompt corrective action hampers its speedy. (9)While both Korea and Portugal have the on-site inspection over banks, only Korea expands its scope into major shareholders of banks. Because major shareholders are being regulated by other provisions, the expansion of the on-site inspection into banks may be an overlapping or excessive regulation and needs to be reviewed. (10)Portugal has lots of provisions regarding cooperation between inside other regulators and outside banking regulators. However, there are only two provisions for cooperation between regulators. Because Korea has to prepare for the Free Trade Agreement, she needs to improve the cooperative system with other regulators.

영어초록

Since the second half of 2007, so many countries have been difficulty in financial crisis originated from the United States. In particular, Portugal, Ireland, Italy, Greece and Spain (hereinafter PIIGS) who are heavily invested by Germany and France as leading countries in the European Union (hereinafter EU) are the center of the storm. If the PIIGS cannot pay their debts, this is not just about it anymore. Furthermore, there are also reports that the PIIGS’ insufficient financial regulations over their financial institutions worsen the current situation of the PIIGS. However, if there are sufficient financial regulations in the PIIGS, the current situation of the PIIGS will be better. In this sense, the author examines the financial regulation focused on the banking regulation of Portugal and is attempting to elicit useful lessons for the Korean legal system as follows:(1)There are different authorization systems required for financial institutions to deal with electronic money in Korea. Because of possible regulatory arbitrage, such different authorization systems need to be reviewed. (2)The minimum capital for starting banking business in Korea is about four times more than that in Portugal. Because the Korean minimum capital for beginning banking is excessive, it also needs to be examined. (3)Because there is a preliminary approval process for banking in Korea and such a process may be an overlapping regulation, it needs to be reexamined. (4)For the efficient regulation of a banking regulator, the central bank such as the Bank of Korea who supplies money needs to control banks. (5)-(6)There are different investment limits and limits of holding bank’s shares depending on receivers and shareholders in Korea. Because banks will be affected by receivers or shareholders, such different limit systems are more efficient than those of Portugal. However, there is potential regulatory arbitrage in different limit systems, such different limit systems need to be reviewed. (7)Because the internal control mechanism will be introduced with compliance officer, the efficiency of internal control mechanism is far more than that of Portugal. However, can the compliance officer effectively monitor the bank that elected himself? So the compliance officer needs to be reviewed. (8)On the contrary to Portugal, there is a prompt corrective action in Korea, which is very useful for a single bank or a bank belonging to Group such as a holding company. However, the delay clause of such a prompt corrective action needs to be removed or reexamined because the delay of a prompt corrective action hampers its speedy. (9)While both Korea and Portugal have the on-site inspection over banks, only Korea expands its scope into major shareholders of banks. Because major shareholders are being regulated by other provisions, the expansion of the on-site inspection into banks may be an overlapping or excessive regulation and needs to be reviewed. (10)Portugal has lots of provisions regarding cooperation between inside other regulators and outside banking regulators. However, there are only two provisions for cooperation between regulators. Because Korea has to prepare for the Free Trade Agreement, she needs to improve the cooperative system with other regulators.

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