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은행의 소유규제에 관한 법적고찰
A Legal Analysis on Bank Ownership under the Korean Bank Act
고동원 ( Dong Won Ko )
금융법연구 1권 1호 261-298(38pages)
UCI I410-ECN-0102-2012-320-001801501

On April 27, 2002, the Korean Bank Act was significantly amended, which became effective on August 28, 2002. The main feature of the amendments to the Bank Act is to increase ceiling on a nationwide commercial bank ownership from 4% to 10%, although the ceiling applicable to the "non-financial business group" (which mainly consists of non-financial affiliated companies, but as is explicitly defined under the amended Bank Act) is in principle 4%, except for certain cases. However, a certain eligible person, who satisfies certain requirements as prescribed by the relevant regulations, is allowed to own more than 10% of shares with voting rights of a nationwide commercial bank on the condition of the approval of the Financial Supervisory Commission (the "FSC"). On the other hand, the ceiling on the regional commercial bank ownership is currently 15%. Like a nationwide commercial bank, a certain eligible person is permitted to own more than 15% of shares with voting rights of a regional bank with the FSC`s approval. However, the non-financial business group is in principle allowed to own up to 15% of shares with voting rights of a regional bank, except for certain cases. In this connection, this article examines the regulation of bank ownership under the 2002 amendments to the Bank Act including the Enforcement Decree thereof and the relevant supervisory regulations and rules, analyzing some problematic issues under them, and suggests some solutions on such issues. First, the 2002 amendment to the Bank Act allows a post-facto notification system in case where an investor intends to own a nationwide commercial bank`s voting shares above 4% to 10%, and the amendment to the Enforcement Decree thereof requires the investor to file a notification within five (5) ``days`` from such occurrence of the bank ownership; then, in this connection, it is suggested that (i) since it is unclear whether the ``day`` means ``business day`` or ``calendar day``, a clear guideline be necessary, and (ii) the due date for the notification be extended considering that the current five day is too short for filing the notification with heavy supplementary documents. Second, under the current Financial Holding Company Act, it is unclear whether the FSC`s approval (which is required under the Bank Act, but is currently not prescribed in the Bank Act) is required when a bank holding company intends to acquire more than 10% (15% in case of a regional bank) of shares with voting rights of a nationwide commercial bank which will become its subsidiary bank. Thus, it is suggested that (i) the Bank Act explicitly provide that the FSC`s approval would be required in such case, and (ii) such provision be also added in the current Financial Holding Company Act. Third, (i) in the definition of a non-financial business group, it is not clear whether foreign companies are included in the category of such non-financial business group, so it is suggested that the clear guideline be inserted in the Bank Act, and (ii) it is recommended that the relevant provision be amended to apply the post-facto notification requirement to such non-financial business group when they are exceptionally permitted to have the bank ownership above 4% to 10%. Fourth, under the current rules, foreign investors who intend to own more than 10% of voting shares of a nationwide commercial bank are limited to such a company which is engaged in banking, securities or insurance business or its holding company, and such requirements may be exempted when the supervisory authority deems there exist "special reasons such as resolution of insolvent banks"; in this connection, recently the supervisory authority has permitted a foreign investment fund to own more than 10% of voting shares of a nationwide commercial bank which has not been designated as an insolvent bank but deeming that there exist "special reasons"; however, it is criticized that it casts doubts about the appropriateness of such approval, and thus, it is suggested that such exempts should be repealed.

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