The study of U.K.'s FSMA on the insolvency of financial institutions and implications in South Korea

Abstract

After studying FSMA 24, We found that the insolvency rule of financial institutions in FSMA consists of eight provisions: 1) voluntary arrangement, 2) administration order, 3) receiverships, 4) voluntary winding up, 5) winding up by the court, 6) bankruptcy, 7) provisions against debt avoidance, and 8) supplemental provisions in insurance cases. Insolvency provisions in FSMA explain powers and accountabilities of FSA in relation to these insolvency proceedings. Although there are some differences in proceedings, provisions entitle FSA the same status as creditors to petition the court, with a right to participate in related meetings and to be notified of any matters involving insolvency proceedings. The differences and implications between U.K.'s FSMA and Korean regulations are related to the insolvency rule of financial institutions. First, in FSMA, FSA has a comprehensive power to manage insolvency proceedings of financial institutions in a centralized way. However, Korean regulations have special laws to regulate insolvency in a decentralized way. The offices executing those laws are the Financial Services Committee, the Financial Supervisory Service, and the Financial Deposit Insurance Corporation. This characteristic results from an accelerated legislation procedures related to financial reform in 1997 Korean financial crisis. Second, FSA contains special provisions on continuation of contracts of long-term insurance considering the characteristics of insurance industry related to insolvency of financial institution. However, Korean insolvency rules applied to financial institutions do not consider industrial differences and the characteristics of financial contracts, so need to be supplemented in the future.