힘의 원천이론

• 영문명: The Source of Strength Doctrine
• 발행기관: 한국사법학회(구 한국비교사법학회)
• 저자명: 백정웅(Joeng-Woong Baik)
• 간행물 정보: 『비교사법』비교사법 제12권 4호, 497~540쪽, 전체 44쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2005.12.01

영문 초록

Over many years, the U.S. Federal Reserve Board of Governors (hereinafter FRB) has employed the “Source of Strength” Doctrine to impose fiscal responsibilities on hol ding companies when their financial subsidiaries fail by the Code of Federal Regulation and the doctrine of the FRB has also been accepted by the Courts. Moreover, the doct rine is still been employed through the 「Gramm-Leach-Bliley Act」 in 1999. On the other hand, after the Korean exchange crisis in 1997, the「Financial Holding Company Act」(hereinafter FHCA) was enacted in 2000 (which was revised in 2002) and was designed to assist in the reform of the troubled Korean financial industries re sulting in large part from the unregulated interconnections between the Korean financial institutions and the large Korean corporate conglomerates (i.e., “Chaebols,” such as Samsung, Hyundai, LG, etc.) and to make the Korean financial industries more competi tive in the international market place. However, because the FHCA was enacted without enough examinations and any experiences on financial holding companies, legal issues on the financial holding companies must be extensively reviewed. In this regard, there is also the very first stage of debate on the “Source of Strength” Doctrine in Korea as follows: because the FHCA provides Article 50 (management guidance standards) related to the U.S. “Source of Strength” Doctrine, whether or not Article 50 of the FHCA accepts the doctrine has been debated. In the context of financial holding companies, the “Source of Strength” Doctrine pres cribes that holding companies must act as a source-of-strength to their troubled financial subsidiaries when their financial subsidiaries fail or have financial difficulties. Through the exhausted examination of the U.S. studies on the doctrine, this article con cludes that the FHCA admits the doctrine as follows: the doctrine is accepted in (1) Article 3 (conditions on authorization for the establishment of any financial holding compa ny) and 50 of the FHCA, (2) Article 28 of the Enforcement Decree, and (3) Article 25 of the「Regulation on Supervision of Financial Holding Companies」 (hereinafter RSFH C). In fact, Article 25 of the RSFHC prescribes only holding companies without their financial subsidiaries even if the FHCA and its Enforcement Decree accept the doctrine. In this sense, Article 25 of the RSFHC must be soon revised in order to be subject to its superior Acts (i.e., the FHCA and its Enforcement Decree). Finally, even if the studies of the “Source of Strength” Doctrine, to date, are the very first stage in Korea, the article tries to fix the doctrine and apply it to the Korean fi nancial holding companies in accordance with the Korean situations because the Korean situations are different from the U.S. situations. In addition, because the doctrine is not a perfect theory, the doctrine needs to be supported or clarified by several theories (which are based on the doctrine) related to financial holding companies' obligations over their financial subsidiaries' failure. That is, the combination between the doctrine and the theories of financial holding companies' obligations over their financial subsidia ries' failure is expected in the future for the next study on the doctrine.

목차

Ⅰ. 서설

Ⅱ. 미국의 경우

Ⅲ. 우리나라의 경우

Ⅳ. 결어

[참고문헌]

【ABSTRACT】