부동산개발금융의 시행규제에 관한 공법적 연구

부동산 개발금융에 적용되는 행정규제를 공법적으로 연구했다.

Abstract A Study of Administrative Regulations on Real Estate Project Finance Real Estate Project Finance is the process by which real estate developers funding for developments. Regulations on Real Estate Project Finance is a field where both construction law and financial law overlap. Real estate developers promote development projects based on regulations of construction law. Until a building is completed, various public regulations are applied, starting with the Building Act, the National Land Planning And Utilization Act, etc. The purpose of the real estate development project is to earn profits by purchasing bare land and constructing huge commercial facilities or residential building.

A huge amount of capital, cost, and effort is invested here. For such large-scale financing a financial engineering, Project Finance, was developed. Financial institutions and other investors participate in real estate projects through various investment vehicles in accordance with the Financial Act. Real estate development finance started with PF loans, which provide loans for real estate projects, and has shifted to indirect finance using collective investment schemes and real estate investment companies, etc., based on each individual law.

Currently, there are three types of funding vehicles under the Korean Financial Act: Real Estate Collective Investment Schemes under the Financial Investment Services And Capital Markets Act(‘Capital Markets Act’), Real Estate Investment Companies under the Real Estate Investment Company Act, and Project Financial Vehicles under the Corporate Tax Act. It is characteristic that the three types of bodies carrying out the same functions are each supervised by different administrative agencies under separate laws. Due to this, there may be gaps in regulations or overlapping regulations related to real estate finance for the same purpose.

For example, there are cases where the Financial Services Commission and the Ministry of Land, Infrastructure and Transport have respective supervisory powers, and jointly exercise supervisory authority over areas where a real estate investment company and a collective investment scheme overlap. Regulatory overlap and gaps run counter to traditional regulatory principles aimed at predictability and clarity, consistency and uniformity. Irrational regulation reinforces criticism that deregulation is in line with social rationality. It should be avoided even for regulatory reform that pursues quality regulation.

During the recent revision of the Capital Market Act, the definition of a private equity fund was changed and the regulations of the Real Estate Investment Company Act that apply mutatis mutandis to the provisions of the Capital Market Act were not amended. This is due to the lack of cooperation between administrative agencies. This study categorizes the types of real estate finance and analyzes investment types according to the degree of participation of financial companies. Financial companies invest in real estate development projects in the form of direct finance using PF loans or indirect finance through funding mechanisms such as collective investment schemes.

However, if a financial company is not merely a financial investor but directly acts as an actual developing entity, appropriate discipline is required. From the perspective of investor protection, the Financial Act aims to alleviate information asymmetry and enhance the financial soundness of financial companies. An important issue is how to regulate the form of direct implementation of real estate development projects by financial companies. In particular, if the real estate development project is stranded, the implementer is the subject of primary responsibility.

Therefore, if the enforcement authority is granted to the financial company that controls the funding mechanism, this may become a risk factor for the financial company. Financial Regulations prohibits the acquisition of real real estate by banks and insurance companies, and limits high-return and high-risk investments by financial companies. From this point of view, it is necessary to keep an eye on the implementation of real estate development projects through investment vehicles of financial companies. Real estate finance shows that the Administrative Regulations should move to a structure in which multiple administrative agencies work together.

The regulatory laws of both the Construction Act and the Financial Act should be applied to the participation of financial companies in real estate development projects, and close cooperation between different administrative agencies is required. In the complicated and specialized administrative legislative process, the scope of duties that multiple administrative agencies are in charge of, such as the Real Estate Investment Company Act, may arise between administrative agencies, and on the other hand, the scope of duties remaining blank may arise.

With this in mind, it is necessary to recognize the implementation by financial companies beyond the fundraising function through real estate finance, and to investigate the complex and diverse legal relationships that may arise as a result. 국문초록 부동산금융법은 건설법과 금융법이 중첩되는 분야이다. 부동산개발업자들은 건설법 분야의 공법적 규제를 바탕으로 개발사업을 추진한다. 하나의 건물이 완공될 때까지 건축법부터 시작하여 도시계획법, 기타 사회간접자본에 관한 다양한 공법적 규제가 적용된다. 부동산개발사업은 나대지를 매입하여 거대한 상업용 시설이나 주거용 건물을 생산하여 개발이익을 향유하는 것을 목적으로 한다. 여기에 막대한 자본과 비용, 노력이 투입된다. 이러한 대규모 자금조달을 위하여 부동산개발금융, 즉 프로젝트 파이낸싱이라는 금융기법이 발전하였다. 금융기관 기타 투자자들은 금융법에 따라 다양한 투자기구를 통하여 개발사업에 참여한다. 부동산개발금융은 부동산개발사업에의 자금을 대출하는 PF대출에서 시작하여 집합투자기구, 부동산투자회사 등 각 개별법에 근거를 둔 자금조달기구를 이용한 간접금융 중심으로 변모하였다.

현재 한국 금융법상 자금조달기구에는 자본시장법상 부동산집합투자기구, 부동산투자회사법상 부동산투자회사 그리고 법인세법상 프로젝트금융투자회사가 있다. 동일한 기능을 담당하는 세 가지 형태의 기구가 각각 별개의 법률에 근거하여 다른 행정청의 감독을 받는다는 점이 특징이다. 이러한 점으로 인하여 동일한 목적의 부동산개발금융에 관한 규제의 공백 또는 규제의 중첩이 존재할 수 있다. 예를 들면 자본시장법의 금융위원회와 부동산투자회사법의 소관 행정청인 국토교통부가 각 감독권한을 지니며, 부동산투자회사와 집합투자기구가 중첩되는 부분에 관하여 공동 감독권을 행사하는 경우도 있다. 규제의 중첩 및 공백의 여지는 예측가능성과 명확성, 일