[2] Whether each provision of Article 2 subparag. 3 (a), Article 11 (1), and Article 14 (2) of the former Act on the Structural Improvement of the Financial Industry violates the Constitution (negative)

In order to propose a trial on the constitutionality of a law, the court should be the premise for a trial on the constitutionality of a law. Here, the term "the premise for a trial on the constitutionality of a law" refers to the case where a law at issue applies to a trial on the relevant litigation case, and where a court in charge of the relevant case makes another decision depending on whether the law is in violation of the Constitution (see Supreme Court Order 2002Hu113, Sept. 27, 2002).

On June 29, 1998, a party member 202du5313 case at the main case of the application case, which is a party member 2002du5313 case, the Financial Supervisory Commission (hereinafter "the Financial Supervisory Commission") dispute the validity of the suspension of business, decision to transfer business, suspension of business by all executives, and appointment of administrator (hereinafter "each of the dispositions in this case") against the Gyeonggi Bank on June 29, 1998. Since the Financial Supervisory Commission (hereinafter "the Financial Supervisory Commission")'s disposition in this case is an insolvent financial institution under Article 2 subparagraph 3 (a) of the former Act of the Act on the Structural Improvement of the Financial Industry (amended by Act No. 5549 of September 14, 1998; hereinafter "the Financial Supervisory Commission")'s decision on the implementation of the order under Article 11 (1) of the Act, or the merger or transfer of business with other financial institutions, it cannot be deemed that the above disposition in this case is unlawful under Article 11 (1) (4) and (14) of the Banking Act.

2. The remainder of the proposed unconstitutionality

A. Violation of the principle of prohibition of comprehensive delegation of legislation or the principle of clarity of law

(1) Article 2 subparagraph 3 (a) of the Act

Article 2 subparagraph 3 (a) of the Act provides that a financial institution which is judged to have an obligation in excess of property and to have difficulties in normal management is insolvent financial institution. In this case, "evaluation and calculation of debts and debts" as used in the above provision shall be based on the criteria determined in advance. The concept used in accordance with the general concept of "debt" and "property" in the financial institution, "debt", "property", has an essential limitation in its interpretation. In practice, in applying this concept, it is inevitable to delegate the concept of the FF to the public notice of FF in light of the nature of business as well as the technical and professional experience in the relevant field in application of the concept, and the matters to be determined in advance by FFF public notice shall be deemed to be matters to be determined in advance by FFF public notice, which are detailed matters that become the criteria for calculating the financial institution, and the concept of assets and debts, the application thereof, evaluation and calculation of assets and debts, which are determined in accordance with the above provision.

In addition, the above provision provides that the debt exceeds the property and the financial institution which has difficulties in normal management as a result of the evaluation of property and the debt may be decided as an insolvent financial institution. Thus, the above provision provides objective criteria to exclude the arbitrary application of the law, because the delegation of authority on the gold reduction is sufficiently stipulated in the scope of delegation and the criteria for the determination of the delegation, and the delegation of authority on the gold reduction is limited.

Therefore, it cannot be said that the above provision contravenes the principle of prohibition of comprehensive delegation of legislation or the principle of clarity of law.

(2) Article 11(1) of the Act

Article 11(1) of the Act provides that, in certain cases, an insolvent financial institution may issue an order for partial retirement or consolidation of stocks, suspension of an officer’s performance of duties, appointment of a manager, merger, transfer of all or part of business, acquisition of the relevant financial institution by a third party, etc. In such a case, such an order for improvement of business management does not include a suspension of banking business or a decision for transfer of contracts, but does not include a suspension of bank business or a decision for transfer of contracts, and thus, it cannot be said that a provision comprehensively delegates unclear restrictions on private property rights.

(3) Article 14(2) of the Act

Article 14 (2) 3 of the Act provides that "a case where a debt significantly exceeds the property and an insolvent financial institution is unable to comply with an order to improve management under Article 11 or to merge with another financial institution because the debt significantly exceeds the property" as one of the cases where a gold reduction is able to dispose of the insolvent financial institution such as a decision to transfer a contract, etc. In this context, "the case where a debt significantly exceeds the property" refers to the case where the debt significantly exceeds the property to the extent that it is difficult to expect the execution of such order or the merger, etc. even if an order to improve the management under Article 11 of the Act or the mediation of merger, etc. is made, and it is difficult to uniformly determine what case it is, and it is difficult to determine whether it is a case or not, and therefore, the gold reduction has granted the authority to determine whether it is a case in consideration of the degree of the insolvent financial institution's management."

In addition, Article 14(2) of the Act clearly provides for the State agency making a decision for contract transfer, the financial institution subject to the decision, the requirements for making a decision, etc., and only the gold reduction has granted the authority to determine the scope of contract subject to contract transfer in consideration of the type of assets subject to contract transfer and the degree of insolvency, the circumstances of the financial institution transferred, etc. to the extent necessary for protecting depositors and stabilizing credit order. Thus, the above provision provides objective criteria for excluding arbitrary application of law with regard to the exercise of the above authority by the gold reduction.

Therefore, the above provision cannot violate the Constitution against the principle of clarity of the law.

B. Whether the violation of the principle of excessive prohibition infringes on the essential contents of the private property right

Unlike other private companies, financial institutions have a very negative effect on the national economy as a whole. Therefore, it is necessary to take measures to stabilize the national economy by preventing any event such as bankruptcy and impossibility of payment of deposits. To this end, it is necessary to transfer contractual status arising from financial transactions of insolvent financial institutions to other public institutions, such as the Korea Assets Management Corporation, and to preserve the difference between transferred assets and liabilities through contributions of the Government, etc. (hereinafter referred to as the “contract transfer method”) to promote the protection of depositors and the safety of financial transactions by consolidating insolvent financial institutions. Article 14 of the Act has the legislative purpose of promoting the improvement of insolvent financial institutions, where it is difficult to normalize its management even if it invests public funds due to excessive increase of its liabilities, it is necessary to take the procedure to maintain insolvent financial institutions by the method of contract transfer under the premise of the extinguishment of the financial institution, and the improvement of contracts by the method of contract transfer can be one of the effective methods for the sake of protecting depositors and safety of financial transactions, and it is necessary to take measures to ensure that the existing financial institutions are not in violation of the provisions of Article 11 of the Act.

3. Conclusion

Therefore, the application of Article 10(1) and Article 14(3) of the Act, and Article 46 of the Banking Act is unlawful. Thus, the remainder of the application is dismissed without merit. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Hong-hoon (Presiding Justice)