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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 2호 (2013)

발간사(發刊辭)

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

"금융소비자 보호에 관한 법률안"의 내용 및 문제점

김재범 ( Jae Bum Kim )
한국금융법학회|금융법연구  10권 2호, 2013 pp. 3-31 ( 총 29 pages)
6,900
초록보기
Recently it has become an urgent pending problem to protect financial consumers since several financial accidents which produced to massive victims. For the purpose it needs to enact the law of financial consumer protection and to reform the financial supervisory authority. The government legislative bill has been proposed since 2011, however it has not been enacted yet. Final government bill of July 6, 2012 has been still debated in the Assembly. As regards the independence of financial supervisory authority, it is offered in the bill that it should be established within the ``Financial Supervisory Service (FSS)`` and have more strengthened power than present in budget, personnel matters and work by the bill. However I think the independence of it is very weak because it is proposed to consult with governor of FSS to decide budget and personnel matters in the bill. Even it needs the recommendation of the governor of FSS to appoint director of it. Several legislation bills by Assemblymen have been proposed too. According to them it is majority opinion that financial supervisory authority be placed under Financial Committee and it has equivalent status to FSS. In this way financial supervisory function could be worked more independently and efficiently than present. Although diverse opinions can be proposed, it should be achieved that financial supervisory authority be independent and be granted powers needed to supervise the financial company.

금융ADR제도에 관한 연구

양만식 ( Man Sig Yang )
한국금융법학회|금융법연구  10권 2호, 2013 pp. 33-64 ( 총 32 pages)
7,200
초록보기
Alternative Dispute Resolution (ADR) is different from court rule in that a person for neutral procedure is involved unlike negotiation or reconciliation between parties in disputes that need the involvement of the courts, one of the state powers. Its strong points include transparency, neutrality, and fairness compared to the negotiation and reconciliation. In a negotiation with a partner in dispute, the gap in terms of legal knowledge and money between partners can lead to unfair or unclear resolutions for a relatively weaker partner, and it becomes more difficult to resolve the case at the end of the negotiation. ADR, however, involves the third person with neutrality and fairness to fix the gap and seek for fair resolution. It even increases the possibility to resolve the stalemate of the dispute through the third person`s involvement. ADR has more benefits in terms of time, cost, flexibility, confidentiality and expertise. ADR is used in diverse cases of consumer`s complaints, medical conflicts and international trades. We can also think of using ADR in resolving financial disputes. Because of the diversity and complexity in the financial market, the disputes cannot be resolved with only legal knowledge. Along with the diverse financial products, consumers buying the products increase, and in accordance buying and selling of the financial products happens daily. On the contrary, consumers` lack of knowledge, sellers` inefficient explanation, exaggerative advertisement of the products and financial fraud cause loss of investment by the consumers, increasing the financial disputes. Just like other disputes between individuals, it is realistic to resolve the financial disputes in the court, but consumers have less information than the financial companies and they are weaker in terms of money and expertise. Considering the situation, it is problematic to resolve the disputes in the court. Therefore, it is much more economical and efficient to use ADR which has many benefits of time, money and expertise.

증권분쟁의 소송대체적 해결방안

이윤석 ( Yun Seok Lee )
한국금융법학회|금융법연구  10권 2호, 2013 pp. 65-91 ( 총 27 pages)
6,700
초록보기
The United States Supreme Court`s decisions established the enforceability of pre-dispute arbitration agreements in customer securities contracts. Because of the Supreme Court`s decisions most brokerage firms routinely require the customers to sign agreements diverting any customer claims to arbitration. Although courts currently hold that pre-dispute arbitration agreements in customer securities contracts are enforceable pursuant to of the Federal Arbitration Act, congressional legislation has articulated concerns with such agreements. This legislation includes the Arbitration Fairness Act of 2009 and the Dodd-Frank Wall Street Reform and Consumer Protection Act. The debate over pre-dispute arbitration agreements in the securities customer context centers around a variety of issues, including (1) the freedom of contract, (2) the SEC`s regulatory oversight of FINRA, (3) the transparency of the FINRA arbitration process, and (4) the FINRA Customer Code`s protection of customer due process rights. The mediation has been used and studied much more than the arbitration as the ADR of securities disputes in Korea. However, the mediation has problems such as the effectiveness of relevant mediation, how to separate a supervisory organ from the disputes mediation organization and multiplication of the disputes mediation organization. This Note explores activating the arbitration in securities disputes in Korea. To activate the arbitration, (1) we should make a self-regulatory organization governing the securities industry, (2) the customer should be given the unilateral right to demand arbitration, giving a customer who did not sign a pre-dispute arbitration agreement, (3) Arbitrator candidates should be ineligible to be arbitrators if they possess certain affiliations with the financial services industry, (4) the arbitration should be procedurally fair to customers.
7,400
초록보기
In recent case (2006Da17539), the Korean supreme court judged about a duty to explain the significant matters of contract and the principle of confirmity in variable universal life insurance contract. The supreme court support the decision of Seoul high court (2009Na 97606 decided March 31, 2010) partly. In this case the supreme court decision agree with the breach of the duty of explain of insurance solicitor. But in applying principle of confirmity, the supreme court reversed a judgement of the original court and remanded the case to the original court for future developing. Currently, this case is pending in original court. Above all, supreme court allowed comparative negligence in formation of insurance contract. The writer have been comment the high court`s decision in Vol. 385 of Monthly Life Insurance published by Korea Life Insurance Association. The writer rewrote the comment since the supreme court`s decision is differ from high court`s decision in some important points. The decision of the supreme court is particularly significant because it clarified that when deciding the tort liability of the insurance company it is possible to comparative negligence at court`s discretion. The supreme court emphasize that the principle of conformity should be prudentially applied. New Insurance business act of 2010 art.95-3 provide the Principle of Conformity and limit the scope of the insurance products governed by above article is prescribed by Presidential Decree. Variable insurance included the example of investment product have to apply the conformity rule. Also, Insurance business act art.95-4 provide the duty of explain to apply all insurance business include variable insurance. And Enforcement decree of the insurance business act newly insert art.42-3 (Matters to Confirm, etc. under Principle of Conformity) in 2011. The decree describe the standard of judgement on the conformity in detail. Those are age of the policyholder; monthly income and the share of insurance premium disbursement in the monthly income ; purpose of purchasing the insurance ; whether the policyholder has an amount-variable insurance contract or has purchased collective investment securities under Article 9 (21) of the Financial Investment Services and Capital Markets Act. Above matters deemed necessary for recommendation of the conclusion of an insurance contract suitable to the policyholder. The original court shall render a judgement. The factual and legal findings, which has been regarded by the court of final appeal as the ground of reversal, shall be binding. And the original court shall review the circumstance evidence consider the intent of above statutes.
7,900
초록보기
This paper is to study and analyze some important cases held by the recent Korean Supreme Court. The issue which will be dealt with in this paper involves the duty of disclosure. Where a consumer insurers another person`s life, is it duty of consumer that investigate the person whose life is insured about their health? The Supreme Court construed the related matters, and this paper clarified the holding. The section 651 of Korean Commercial Code is based on utmost good faith, and it has been interpreted to mean that a insured is under a duty volunteer material information, and that the penalty for failing to do so is avoidance. It places an obligation on the insured to disclose every circumstance which would influence the judgement of a prudent insurer in fixing the premium or determining whether he will take the risk. This paper tries to clarify the meaning of intention and gross negligence. It is now generally accepted good practice that insurers should ask insureds questions about any material facts they wish to know. Where a consumer takes out insurance on another person`s life, the insurer should ask the person whose life is being insured. In this case the insurer may not rely on the information provided by the consumer. The consumer would not owe a duty to investigate the state of another person`s health. The result is that where a consumer takes out insurance on another person`s life, both the consumer and the life insured are under a duty to take reasonable care not to make a misrepresentation.
7,000
초록보기
On October 31st, 2013, six insurance companies including Hyundai Marine & Fire Insurance, LIG Insurance, Meritz Marine & Fire Insurance, Hanwha General Insurance, Heungkuk Fire & Marine Insurance and MG Non-Life Insurance officially rejected the decision made by Korea Consumer Agency`s Consumer Dispute Settlement Commission on September 25th, 2013 that "health insurance`s indemnity limit should be restored from the reduced amount of 50 million Korean won to the original amount, 100 million." When either party rejects the determination within 15 days since the decision is made, the meditation loses its legal effects and the applicant can take the case to the court. That is, the insurance companies` unilateral reduction of health insurance`s indemnity limit will be treated in the court. Regarding the issue, the Consumer Dispute Settlement Commission wrote this article in order to look at the decision of restoring the indemnity limit to the original state from diverse perspectives. First, we reviewed that it is hard to say that the insurers fulfill the obligation of indication and explanation that the limit of indemnity would decrease from 100 million to 50 million to insurance policy holders under the Commercial Law and the Contract Terms Regulation Act. Second, the additional rules of the Regulation on Supervision of Insurance Business, the Enforcement Procedures on Supervision of Insurance Business and Supervision Regulation are applied only to the share of cost, but not to reduction of indemnity limit. The Enforcement Procedure does not have lapse provision unlike the additional rules of the Regulation on Supervision, therefore, insurers who reduced the limit based on the above-mentioned regulations are considered to misinterpret the regulations. Lastly, the Financial Service Commission which is in charge of defective administrative activities should revoke the administrative activities with flaws to save subscribers. In addition, the Financial Service Commission should issue a new order of administrative activity to raise the indemnity limit from 50 million to 100 million Korean won according to the Clause 4 of the Article 131 of the Insurance Business Act. If insurers explained about the reduction in indemnity limit and the subscribers are aware of the fact, the reduction of the limit would become an important standard for subscribers to determine whether they subscribe the insurance policy. And if they know the fact, it is highly likely that people do not buy the insurance policy. All what mentioned above explains that insurers did not give an explanation about the fact. And it is fair to say that the marketing strategy which encourages consumers to buy the insurance policy before the policy goes out of market would not be possible and insurers could not get 600,000 people subscribed to the insurance policy within a short period of 2 months if subscribers know the fact. In addition, insurers send a notification letter about the reduction in indemnity limit when the insurance policy is renewed and did not fulfill the obligation of explanation faithfully. Therefore, under the Korean Policy Regulation Act, the reduction should not be considered as part of the renewed insurance policy or should not be included in the policy, but the insurance policy is renewed with the original insurance terms. Therefore, we determine that it was the right decision we have made in the meditation that the indemnity limit of health insurance signed on August 28th, 2009 between insurer and subscriber should stay at 100,000,000 won.

개정 자본시장법과 금융투자상품에 관한 연구

정재은 ( Jae Eun Chung )
한국금융법학회|금융법연구  10권 2호, 2013 pp. 201-237 ( 총 37 pages)
7,700
초록보기
The definition of the financial investment instruments is critical to the financial business. It is a basic criterion to the financial regulation. As per the Financial Investment Services and Capital Markets Act, all financial investment instruments are classified to one of the securities and the derivatives. Who can issue or sell a product and which rules should be followed to do it are depended the product to be classified which financial investment instrument. In addition, it is a requirement of sanctions including punishments of related acts. The provisions regarding the financial investment instruments are Article 3(Financial Investment Instrument), Article 4(Securities) and Article 5(Derivatives). Amendments of each provision above are being included into the Financial Investment Services and Capital Markets Act in 2013 (Act No. 11845, May 28, 2013. "Capital Market Act"). To clarify the meaning of each provision, the Capital Market Act in 2013 adjusts scope of financial investment instrument by clearly excluding some products from a provision above and delegates to the enforcement decree of the capital markets act to specify any products which should be excluded from a financial investment instrument. This is related to the amendments of Commercial Act in 2011 which specify new instruments of bond. This paper is a review of the details and purposes on the provisions regarding the financial investment instruments amended by the Capital Market Act in 2013 and introduce any legal issues caused by such amendments to the financial business.
12,600
초록보기
The main result of the Reform of 1997 Financial Regulatory System in the United Kingdom was the foundation of a integrated supervisory body. In other words, the Financial Services Authority (FSA) as a integrated supervisory body took over the financial supervisory powers from the Bank of England. The Reform of 1997 in the United Kingdom influenced the establishment of the Financial Supervisory Commission (FSC) and the Financial Supervisory Service (FSS) in Korea in 1998, which undertook the financial supervisory powers from the Bank of Korea. Unfortunately the integrated supervision system in UK resulted in failure in the prevention of the global financial crisis in 2008. In July, 2010, HM Treasury of UK published a consultation paper setting out far reaching reforms to the structure of financial regulation in the United Kingdom. After the consultation, the Chancellor of the Exchequer announced that the FSA would be abolished and the Bank of England took back prudential supervisory powers from the FSA. After some proper procedures, the Financial Services Bill were passed by the Houses of Commons and Lords on December, 2012. The Act took effect on and after April 1, 2013. Due to the Reform of 2010, the FPC (Financial Policy Committee), the PRA (Prudential Regulatory Authority), and the FCA (Financial Conduct Authority) were founded in exchange for the abolishment of the FSA. After tardy discussions on the revision of the Bank of Korea Act, the Act was amended in August, 2011, and the reforming discussions on the Korean financial supervision structure were brought up due to the recent supervisory failures in Korea. Especially, since the beginning of 2012 which had presidential election in December, there were many animated reforming discussions on the financial supervision structure. A lot of scholars have suggested that the financial supervision in Korea should be implemented by a public nongovernmental organization instead of a governmental organization. But the Government sticks to his opinion that the financial supervision which is the exercise of governmental authority should be carried out by a governmental organization. The England`s Financial Regulatory Reform of 2010 which was active, innovative, and prudent reform will be a good model for Korean in the future.

금융실무상 공동저당에 대한 일고

都濟文 ( Jae Moon Do )
한국금융법학회|금융법연구  10권 2호, 2013 pp. 291-321 ( 총 31 pages)
7,100
초록보기
Civil Act provides for joint mortgages and dividend of proceeds thereof, subrogation of mortgagee next in priority as follows. Where two or more immovables are mortgaged to secure one claim and the proceeds of the auction are to be applied simultaneously to its satisfaction, the burdens in respect of the obligation shall be divided in proportion to the proceeds of the auction sale of each immovable. If the proceeds of the auction sale of part of the immovables mentioned in the preceding paragraph are to be applied, the mortgagee may obtain full satisfaction of his claim out of the same; in such case the mortgagee next in priority may exercise the right of the prior mortgages by subrogation to the extent of the amount which the latter would have received out of other immovables in accordance with the provisions of the preceding paragraph. In relation to the joint mortgages in financial business, the major problem lies in the appropriate modulation among the persons concerned including borrowers, owners of properties secured for joint mortgages and the mortgagee next in priority whose benefits are got complicated. But civil law can not provide apparent solution to the collision between the mortgagee next in priority and the person who gave his own property as security. But although theoretical arguments exist, bankers should make transactions according to the court`s decision. In future, when the decisions are changed, bankers should do his job according to the changed decisions. Except for special cases focused on social and political considerations, unexpected benefits or losses for either sides of a trade should not be allowed in financial transactions. Especially in banking business, bankers and borrowers can avoid any accidental losses provided that they always transact in accordance with the court`s precedents.
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