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논문검색은 역시 페이퍼서치

금융법연구검색

Korea Financial Law Association


  • - 주제 : 사회과학분야 > 법학
  • - 성격 : 학술지
  • - 간기: 연3회
  • - 국내 등재 : KCI 등재
  • - 해외 등재 : -
  • - ISSN : 1738-3706
  • - 간행물명 변경 사항 :
논문제목
수록 범위 : 10권 1호 (2013)

발간사(發刊辭)

정경영
한국금융법학회|금융법연구  10권 1호, 2013 pp. 1-2 ( 총 2 pages)
1,000
키워드보기
초록보기

축사(祝辭)

정경영
한국금융법학회|금융법연구  10권 1호, 2013 pp. 2-3 ( 총 2 pages)
1,000
키워드보기
초록보기

금융기관 지배구조 개선을 통한 금융안정 강화 방안

정찬형 ( Chan Hyung Chung )
한국금융법학회|금융법연구  10권 1호, 2013 pp. 3-50 ( 총 48 pages)
12,300
초록보기
1. Banks, big insurance companies and financial investment institutions and so on (hereinafter referred to as "big financial institutions") should have executive officers under Korean Commercial Code (hereinafter referred to as "Code") §§408-2∼408-9 who are appointed and removed by board of directors which is mostly composed of outside directors. The distinct separation of executive organ from supervisory board of directors in big financial institutions will be absolutely required in order to prevent the abuse of representative director`s power of big financial institutions under the present financial laws. 2. Outside directors of big financial institutions should take charge of only supervision and examination of executive officers. Therefore, big financial institutions should not entrust outside directors with the other matters except supervision and examination of executive officers in order to prevent the improper use of outside director`s power. And the re-election of outside directors should not be allowed for this purpose. 3. Big financial institutions with executive officers under Code §§408-2∼ 408-9 should have audit committee as one of committees under board of directors (Code §383-2). The members of audit committee should be appointed and removed by not shareholders` meeting but board of directors (Code §383-2 ② 3). Big financial institutions without executive officers under Code §§408-2∼ 408-9 are required to have an auditor (or auditors) instead of audit committee. If big financial institutions without executive officers under Code §§408-2∼408-9 have audit committees, the provisions concerning the auditor under Code shall apply mutatis mutandis to such audit committees. 4. Korean Commercial Code Article 3 (companies) in principle should apply to the corporate governances of all financial institutions. As each financial institution has its own feature, it is absolutely not required to regulate uniformly the corporate governances of all financial institutions with one special law. The present banking law, insurance business law, the law on capital market and financial investment business etc. have only to reflect each financial institution`s character at the minimum.

금융포용(financial inclusion)과 중앙은행

배준석 ( Joon Suk Bae )
한국금융법학회|금융법연구  10권 1호, 2013 pp. 51-87 ( 총 37 pages)
7,700
초록보기
Lively discussions on financial inclusion have ensued since the Global Financial Crisis erupted in September 2008. According to the Global Partnership for Financial Inclusion, financial inclusion refers to "a state in which all working age adults, including those currently excluded by the financial system, have effective access to the following financial services provided by formal institutions : credit, savings (defined broadly to include current accounts), payments, and insurance." In order to achieve financial inclusion, it is essential that the various institutions concerned play their part. The government, for example, plays a vital role in supporting financial inclusion through its fiscal policy. Financial supervision authorities contribute with their regulatory and supervisory powers. Financial institutions, of course, directly provide financial services to the financially excluded. Another institution that contributes to financial inclusion is the central bank. Given that the central bank is at the heart of a country`s financial system, it cannot but be inseparably related to financial inclusion. Since the Global Financial Crisis there has been a growing interest in the role of central banks in microeconomic policies to support individual economic agents such as small businesses. In addition to enhancing the welfare of the financially deprived, financial inclusion contributes to financial stability and economic growth. It is therefore natural that central banks contribute to financial inclusion, which they can promote by conducting the following policies : First, central banks can use lending facilities, one of the monetary policy tools, to support small and medium enterprises with limited access to finance. Reserve requirements can be another monetary policy tool through which financial inclusion can be supported-central banks can impose a relatively low reserve requirement ratio on deposits related to financial inclusion. Providing payment and settlement services to financially vulnerable people is also a way for central banks to contribute to financial inclusion. Financial education is an essential tool for promoting financial inclusion because it raises public awareness of financial products and services. The compilation and improvement of statistics on financial inclusion, which forms the foundation for efficiently and effectively conducting relevant policies, is another area fit for central banks given their expertise on economic statistics. Central banks with the capacity to perform high quality research can also suggest alternative measures for financial inclusion, and participate in international discussions on financial inclusion. Financial inclusion cannot be achieved with the efforts of one institution alone. Efforts must therefore be exerted by all the institutions concerned, such as the government, the central bank, financial supervision authorities and financial institutions, if exclusion from financial benefits were to be prevented.

금융기관 내부통제제도 개편논의와 중앙은행에의 시사점

윤성승 ( Sung Seung Yun )
한국금융법학회|금융법연구  10권 1호, 2013 pp. 89-114 ( 총 26 pages)
6,600
초록보기
The internal control system of financial institutions in Korea is mandatory since relevant financial institutions are required to have internal control system as mandatory legal obligation. Under such mandatory internal control system, the system cannot function as intended without being efficient. However, since such mandatory internal control system had implemented, repeated major financial incidents of banking and non-banking institutions made the Financial Supervisory Service in Korea require improvement of internal controls to the financial institutions, and even the Bill of the Act on Governance of the Financial Companies has provisions to improve internal control of the financial companies. The discussions on the change and improvement of internal control system in financial institutions came from the understanding that the internal control system would not function as intended. Since negative control such as supervision and sanction need constant control by the supervisory authorities, positive incentives need to be used to encourage motivation of the financial institutions. For such purpose, it can be considered that the central bank has the power and authority to evaluate the efficiency of the financial institutions and rate the efficiency. The Bank of Korea as institution to implement the stability of financial system could exercise its inspection or joint inspection power to evaluate the efficiency of internal control system in financial institutions. If a financial institution gains higher rating on the efficiency of its internal control, positive benefits such as regulations on interest rate of deposit or loan, the limit of total amount of lending, and the regulation on collateral lending. Moreover, since the central bank decides its monetary policy which has significant influence on financial market, the Bank of Korea needs its own internal control system to obtain the trust from the market regarding the policy and its implementation.

금융기관의 공공성과 CSR

원동욱 ( Dong Wook Won )
한국금융법학회|금융법연구  10권 1호, 2013 pp. 115-159 ( 총 45 pages)
12,000
초록보기
The financial crisis reminds us how entwined some corporations - notably large financial corporations - are with the economy and society. Although a number of factors contributed to the downturns of the past century, corporate disregard for the greater public interest played a role. The problem with the dominant conception - shareholder primacy and wealth maximization - is that the directors are encouraged to demonstrate their allegiance to shareholder interests. This behavior leads to an unremitting focus on the short term. By the turn of the twentieth century, corporations, especially global investment banks, had become so fixated on increasing profits that they paid little attention to the public impact of their action. The starting place for any proposed reform is simple acknowledgment that corporations should be restrained by public responsibility. This is barely hurdle, since most scholars and commentators acknowledge that corporations have ethical duties, and a public purpose has historically guided corporate activity. Unfortunately, corporations are not required to perform acts that are beneficial to society ; rather, they merely need to refrain from acts that harm society. Some scholars insist that the public duty must be defined and codified. The United Kingdom enacted the Companies Act of 2006, which could offer guidance for what might the legislation of public purpose look like. Recently the banks in Korea published the historical profit maximization, but only to be criticized. Because even though the bank is a company, it must perform the public purpose. Therefore the financial institution should consider the public purpose as well as wealth maximization in its activity.

보험계약법에 관한 개정의견

정찬형 ( Chan Hyung Chung )
한국금융법학회|금융법연구  10권 1호, 2013 pp. 163-190 ( 총 28 pages)
6,800
초록보기
I recommend that Korean Commercial Code Article 4 (insurance contract law) (hereinafter referred to as "Code") should be revised as followings. 1. The terms in Code should be unified and definite (example : the insured, amount insured, subject matter of insurance contract and so on) (Code §§651·733·734, §§730·665, §§668·669). 2. In Code §638-3(2), "even though the person effecting the insurance does not cancel the insurance contract, the insurer cannot assert the validity of such general agreements as contents of insurance contract" should be added. 3. Insurance agent, insurance broker and insurance salesman should be stipulated keeping with those in Code Article 2. 4. In Code §655 sentence 2, "even though the insurer rescinds the insurance contract, the insurer is liable to pay the amount insured in that fact" should be provided instead of "this shall not apply." 5. The provisions saying that any insurance contract by fraud is invalid and the insurer dose not have any obligation against the claim of the amount insured by fraud or forged documents and so on, should be newly regulated in Code. 6. In Code §662, the starting time of extinctive prescription periods should be regulated as well as extension of such periods. 7. In Code §682, the subrogation of insurer should be restricted to even the family members of the person effecting the insurance or the insured as well as the person effecting the insurance. 8. The guaranty insurance should be newly regulated in Code. 9. Code §735 (endowment insurance) and §735-2 (annuity insurance) should be deleted, because such provisions in life insurance are not proper. 10. In Code §735-3, the provision saying that the written consent of the insured is required in case that the person effecting the contract orders any other person except the insured as beneficiary in group insurance, should be newly regulated. 11. In accident insurance, the provision saying that the policy conditions concerning exemption of liability of the insurer in case of no license or drunken drive and so on are valid, should be newly regulated. 12. In Code §739, the provisions concerning not only life insurance but also property insurance shall apply mutatis mutandis to personal accident insurance. 13. Sickness insurance should be newly provided in Code.

상법과 보험업법의 상호관계 및 조화로운 발전방안에 관한 연구

이성남 ( Sung Nam Lee )
한국금융법학회|금융법연구  10권 1호, 2013 pp. 191-261 ( 총 71 pages)
14,600
초록보기
It is well-known that Korean insurance regulation is based on the Insurance Business Law, which is a compilation of private and public law as well as contract law, which is also private law. This dual system of insurance law stemmed from Japanese influence on Korea. This dual system, however, has since lost popularity because of the distinction between public law and private law is not always clear and also because it is practically difficult to squarely fit the rules and regulations into the two categories. Since there is no standard for what the public law and private law should embody, it is not easy to determine whether a certain provision is based on public law provisions or private law provisions. Thus, in the short term, there is a need for a balanced development of and a mutual embracing between insurance business law and insurance contract law. In order to achieve this, an amendment to the relevant insurance business law or insurance contract law provisions must follow cooperation and close discussions between and among government authorities. It is also important that the rules that are purely private and regulations that are necessary in business relations are adjusted accordingly. First, some provisions in the insurance business law, such as those pertaining to the suitability rule, liability for damages, financial condition of the insurer, contracts between insurance brokers and insurance companies, and agency agreements, may be integrated into the insurance contract law. It should be noted, however, that it may be unnatural to sever liability for damages provisions from the insurance business law since those provisions are grounded in duties under public law. Therefore, more discreet consideration of this matter should take place. On the other hand, certain legislative precedents that the insurance business law has taken into account are of value that the insurance contract law should also reflect. In particular, provisions on the duty to explain in the insurance contract law should be improved, using the insurance business law`s provisions on solicitation, by making more specific the scope, method and content of explanation.

보험법(保險法)의 현대화(現代化)

장덕조 ( Deok Jo Jang )
한국금융법학회|금융법연구  10권 1호, 2013 pp. 263-309 ( 총 47 pages)
12,200
초록보기
The draft Bill of Korean Insurance Contract Law as part of the Korean Commercial Law is under review of the Korean Congress. This paper is to study and analyze our draft bill presented by the Korean Government in 2008. First of all our draft bill requires a consumer to volunteer information about other insurances to insurers, and if not the insurer may cancel the insurance contract. However, it is now generally accepted that insurers should ask consumer for the information they want to know. The law needs to be updated to correspond to the realities of a mass consumer market. In this process, the drafted bill of United Kingdom would be a good model to us, and controversial issues of the bill could be a good guidance because the main problems are similar. Our Reform should enhance the reputation of the industry by reducing the scope for insurers to rely on strict legal rights that are unfairly balanced in their favour. Reform would improve confidence in the industry. In this respect this paper tries to study.

전자금융 조성자로서의 한국은행의 업무수행체계 개선 방안

박철우 ( Cheol Woo Park ) , 서연아 ( Youn Ah Seo )
한국금융법학회|금융법연구  10권 1호, 2013 pp. 313-353 ( 총 41 pages)
11,600
초록보기
This paper considers the organizational structure of electronic banking facilitator roles taken on by the Bank of Korea, which is the central bank of Korea, accomplishments of the Bank of Korea`s past activities related to electronic banking facilitation, and institutional problems. Next, as a comparative study, this paper elucidates the roles and organizational structure of central banks as facilitators of electronic banking, focusing on organizations for electronic banking facilitation (organizations promoting financial informatization by developing, expanding and improving the infrastructure of electronic banking), by classifying the organizational structure of electronic banking facilitator roles into the following four categories: (ⅰ) Central banks facilitating electronic banking through internal organizations, (ⅱ) Central banks playing a leading role in operating organizations for electronic banking facilitation, (ⅲ) Central banks supporting and participating in organizations for electronic banking facilitation, (ⅳ) Central banks facilitating electronic banking through payment systems oversight functions. On the basis of these studies, this paper suggests an improvement strategy to promote and facilitate electronic banking including payment and settlement systems. First, it is necessary to strengthen the legal foundation of the organization for electronic banking facilitation in which the Bank of Korea is involved. Especially, through the revision of the Bank of Korea Act, a Payment System Committee should be established as an internal organization of the Bank of Korea. In addition, it is required to expand the participation of diverse stakeholders in organizations for electronic banking facilitation, including financial institutions, payment service providers, financial consumers, and other related business sectors. Second, provisions that vest the Bank of Korea with the authority to promote and support the electronic banking sector, and to pursue electronic banking standardization should be stipulated in the Bank of Korea Act.
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