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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 : 11권 1호 (2014)

발간사(發刊辭)

정경영
한국금융법학회|금융법연구  11권 1호, 2014 pp. 3-4 ( 총 2 pages)
1,000
키워드보기
초록보기

『금융소비자보호법』제정안의 판매관련 금융소비자보호의 의의와 한계

안수현 ( Soo Hyun Ahn )
한국금융법학회|금융법연구  11권 1호, 2014 pp. 3-52 ( 총 50 pages)
12,500
초록보기
In response of the increasing damages of financial consumers suffering form the asymmetry of information and conflict of interests between financial consumers and financial companies, Financial Service Commission submitted the bill of Financial Consumer Protection Act to the National Assembly and waiting for the review. This Bill is positively evaluated and expected to strengthen the protection of financial consumers in the near future. Like this Act is said to have the position of the general protective law for the financial consumers, this bill aims to expand both ex-ante and ex-post protective measures. The bill of Financial Consumer Protection Act can be evaluated positively in that it adopts functional regulation approach as a regulatory framework. Based on the characteristic of financial products, the bill recharacterized and organized the financial products and financial services. In addition, according to the types of sales, it divided the sales channels as follows: direct sales, sales agents and advisors. In the sense that this approach and framework can be understood to eliminate dead zone and regulatory arbitrage, this regulatory framework can be evaluated to be positive. However, when look at the details of regulatory contents, it still focus only on the sales phase. Financial disputes occur not only on the phase of sales but on the after-sales. In addition, making reasonable and right financial decisions is very important the present and future life. However financial products are getting complicated and complex. Furthermore, when sales persons are tied to special financial companies, it causes conflict of interests between sales person and financial consumer. In regard this problems, the bill adopted independent financial advisors. Independent financial advisors are persons who offer the independent advice on the financial matters to the financial consumers and recommend suitable financial products from the whole of the market. This device is advice focused and not driven products. To success this advice focused approach and change the sales practice soundly, we need more backup system to help the business of independent financial advisors. However, the bill does not include to support it sufficiently. On the other hand, as a ex-post protective measures, the massive dispute resolution mechanism for the financial consumers also is not provided in the Act. Though litigation is the surest means of dispute resolution, it has a limitation. It takes to long and needs too much financial supports. In this regard, as an effective dispute resolution measures, the massive dispute resolution mechanism should be adopted and are based on the bill.

금융투자상품 장외거래 CCP에 관한 법적 연구

정승화 ( Seung Hwa Chung )
한국금융법학회|금융법연구  11권 1호, 2014 pp. 55-96 ( 총 42 pages)
11,700
초록보기
Clearing refers to the commitment to payment of the transaction and matching of all buy and sell orders in the market. Central counterparty (CCP) imposes itself as a legal counterparty of clearing members through legal processes such as assumption of obligation, novation, and open offer. In 2009 G-20 Pittsburgh summit, investigating on the causes of the global financial crisis, the clearing through CCP became obligatory. When over-the-counter derivatives (OTC) with such obligation do not use CCP, OTC derivatives cannot benefit from risk-weighting regarding capital regulation. In US, England, and Japan, CCP services are extending to OTCs such as Repo transactions, outside dealing, and securities lending and borrowing. In Korea, revised the Capital Market Act in March 2013 brought a legal basis upon which to use CCP in OTC derivatives and OTC securities trading. The amendment obliges IRS transaction to use CCP. With such changes, further refinements in legal rules to facilitate CCP service are necessary. Reinforcing the risk management of CCP is also needed. First, it is important to gather opinions of CCP users then extend the CCP service in order to facilitate CCP. For transactions made with CCP, benefits should be imposed in terms of capital regulation. Moreover, further complementary measures should be taken for novation and open offer. Considering the possibility of default of CCP itself, refinement of insolvency act is required as well. Meanwhile, having legislative support to gain legal stability of transfer for money is critical for the margin system which is the core of risk management of CCP. Then, proper model and procedure should be constructed to consolidate credit risk, market risk, and liquidity risk of CCP so as to reinforce the risk management of CCP. Such changes will enhance transparency, stability, and efficiency of financial markets in Korea.

국제증권담보거래를 둘러싼 주요문제 -대만 국제사법 제44조에 대한 고찰을 중심으로-

천창민 ( Chang Min Chun )
한국금융법학회|금융법연구  11권 1호, 2014 pp. 99-131 ( 총 33 pages)
7,300
초록보기
Taiwanese Private International Law ("PIL") Act effective on 27 May 2011 is a renovative result, which can be evaluated as a totally new legislation. Among such innovative reform, what is a specifically relevant issue to "Payment and Securities Settlement and Clearing" is Article 44 in Chapter 5 (Proprietary Rights) of Taiwanese PIL Act, providing for a special connecting factor for proprietary aspects of intermediated securities. I do welcome Article 44 given that it concretises the reality of cross-border securities collateral transactions made in the intermediated holding system and that abandons the lex rei sitae, the previous connecting factor for securities certificates, which is no longer appropriate one for intermediated securities. Especially, Article 44 can be evaluated as fairly aggressive in that it admits party autonomy modelling after the Hague Securities Convention in amid to the situation that Asian countries, including Korea, China and Japan, are reluctant to adopt a special statutory choice-of-law provision for intermediated securities. However, it is questionable that Article 44 provides as much legal certainty and predictability as intended by the drafters because unlimited party autonomy specified in Article 44 might infringe on vested rights due to the possibility of change of governing law, and complicate purely domestic transactions by making them international ones. Besides, the wording of Article 44 itself causes several uncertainty. In this regard, this paper further develops proper interpretive ways to attain the intended purposes of the legislation, but finds out that unlimited party autonomy for the proprietary issues of intermediated securities itself involves some unsurmountable demerits.
7,300
초록보기
Documentary Token including negotiable instrument, warehouse receipt, bill of lading reify the obligation they represent and physical delivery of the paper document itself (sometimes coupled with transferor`s declaration of an intent to transfer, which means endorsement) to the transferee constitutes proof of the transferee`s right to enforce the obligation. The legal construct of documentary token is both creating an efficient mechanism for transferring performance rights to third parties and granting the transferee possessing paper document special rights to enforce obligation represented in spite of defences the obligor may have against a prior transferor. The most significant challenge or hinderance faced by any scheme to replace writings with electronic records is that a unique electronic record can`t be physically transferred through telecommunication. Any transmission of the record is not the physical transfer of the original and results in no certainty that the original has been destroyed. In fact, methods used to create and store electronic records render the concept of original irrelevant, therefore the assumption underlying existing rules for Documentary Tokens do not work well in electronic environment. Under such a circumstance as talked above, we need not search for the electronic token which can convey the right to enforce in vain but an electronic equivalent to documentary tokens. Not only the UETA, E-SIGN and revised Chapter 9 of UCC but also the draft of UNCITRAL Working Group Ⅳ focused on that concept - electronic equivalent of which the main concept is control of electronic transferable record. And instead of orignal, the authoritative copy meeting certain criteria (unique, identifiable, unalterable) provides a way to identify the person in control of the electronic transferable record. We already have some electronic transferable records in our legal system such as electronic promissory note, electronic bill of lading and electronic prepayment means. But from the prospective of UNCITRAL draft and UETA and E-SIGN, there are defects in those legislation concerning electronic transferable records in our legal system, therefore it`s necessary to amend and improve such acts in reference to discussion and results of UNCITRAL and other legislations.

크라우드펀딩 도입방안에 대한 법적 검토

원동욱 ( Dong Wook Won )
한국금융법학회|금융법연구  11권 1호, 2014 pp. 169-207 ( 총 39 pages)
7,900
초록보기
Crowdfunding provides a convenient and simple way for companies, individuals, and other business entities to raise start-up capital from a large pool of investors over the internet. Social networks have been used as a medium for financing films and other forms of art as well as charitable solicitations. The internet has the potential for using crowdfunding to reach large numbers of people. Even though crowdfunding can be used to finance small business enterprises, a business seeking investors through crowdfunding implicates the securities laws which provide investor protection by requiring disclosure and registration. Title Ⅲ of the Jumpstart Our Business Startups (``JOBS``) Act provides a crowdfunding exemption from securities registration for small issuers to publicly offer up to $1,000,000 in equity securities during a 12-month period in the U.S. JOBS Act provides for a new registered securities intermediary known as a funding portal. Funding portals or registered brokers should participate in crowdfunding offerings of securities conducted in accordance with the new federal offering registration exemption provided in the JOBS Act. Crowdfunding through established portals emerged as a phenomenon in the places like U.K., Italy, France more-or-less contemporaneously with the growth of crowd-based websites in the U.S. Korean Government and National Assembly try to enact crowdfunding by amending Capital Market and Financial Investment Act. It is necessary to introduce crowdfunding for start-up business publicly raising capital from people. But there would be some problems in enacting crowdfunding by amending Capital Market and Financial Investment Act. There would be a probability that encouraging small business formation and capitalization clash with the regulatory investor protection thrust of Capital Market and Financial Investment Act.

일본의 금융기관 및 그 임직원에 대한 규제

강영기 ( Young Ki Kang )
한국금융법학회|금융법연구  11권 1호, 2014 pp. 209-236 ( 총 28 pages)
6,800
초록보기
Finance is in a very important position in the national economy, because the stability of the financial markets are important. The most common starting point of efforts to promote the soundness of financial markets is the maintenance of regulatory systems against financial institutions which plays a pivotal role in the financial system. Current sanctions against financial institutions and its employees are being made based on financial related laws, regulations and supervision in Korea. And in the case of Japan, also seems like a form similar to that of Korea. However, the legal basis for the regulation of financial institutions, etc. you can see that there are considerable differences. In case of Korea, the legal basis for sanctions are in the financial services laws, including the Law Committee of the installation based financial supervisory authorities, Banking Act, Insurance Business Act, the Financial Investment Services and Capital Markets Act. And then the kind of sanctions have been regulated specifically. In Japan, on the other hand, for the regulation and supervision of financial institutions by the Financial Services Agency administrative activities are central. However, sanctions on financial institutions for financial services laws and regulations, even if there is no special sanctions regulations, except for its officers sacked command. For the regulation of financial institutions in Japan seems to be through a combination of regulatory supervision of financial institutions and the voluntary efforts of promoting and building management system is stronger than the previous. In a nutshell, Differences in both Korea and Japan are as follows. A Form of regulation for financial institutions in Korea, based on the basis of the provisions of the hard law. But a Form of regulation for financial institutions in Japan, based on the guidelines and instructions and thus can be said to have characterized as the soft law. And reactive forms of regulatory oversight, but collected by the Financial Inspection Manual, and the thoroughness of internal control through proactive system maintenance. A type of the regulation and supervision through these financial manual type, shows that it from the conventional form of administrative guidance by switching to a form of self-regulation that can solve the problem of hard law, there is a need to prepare for the deficiency in the legislative. I believe.

보험업법상 보험계약의 철회제도에 관한 고찰

이성남 ( Sung Nam Lee )
한국금융법학회|금융법연구  11권 1호, 2014 pp. 239-273 ( 총 35 pages)
7,500
초록보기
The insurance cancellation protocol specified in the standard terms and conditions for insurance contracts was established in the Insurance Business Act as amended in 2014. The cancellation protocol involves the right to cancel an Installment transaction, door-to-door sales, and telemarketing contracts without any conditions. In regards to insurance market practices, it is recognized as a necessary protocol in the insurance industry. The United States and other advanced countries have adopted the insurance withdrawal system. According to the revisions to the Insurance Business Act, when an insurance policyholder notifies the insurer of his/her intent to cancel the insurance contract within 15 days from the date on which he/she received the insurance policy, the insurer is not permitted to reject the validity of the insurance contract. However, if more than thirty 30 days have elapsed from the date the insurance policy was received, then the insurance policy allows the insurer to reject the insurance policy as not being effective. The 2014 Insurance Business Act also prohibits interference with the cancellation of the insurance contract. The cancellation provisions in the Insurance Business Act (as amended in 2014) is important in that the commencement date for the exclusion period was manifested and the cancellation system has changed from the Insurance Standard Form to the Insurance Business Act. There are certain issues that are associated with the insurance cancellation system such as the inconsistency in the commencement date for the exclusion period and the Korean legal system, and the insurer has reserved the right to refuse the notice of insurance withdrawal. There is hope that the insurance withdrawal system will be improved by considering the original implications of cancellation and the transaction costs associated thereto.

개인정보보호와 기업의 대응

양만식 ( Man Sig Yang )
한국금융법학회|금융법연구  11권 1호, 2014 pp. 275-307 ( 총 33 pages)
7,300
초록보기
In a society where information technology is highly developed, companies are facing a new challenge or a risk. Now we`re living in a highly information-based society, so it is clear to ask for a strict managing system for those companies that collect and keep personal information in order to protect the information given a series of the recent private information breach incidents. With the private information protection law going into effect, the risk of getting administrative disposition is imposed on companies that violate the law and cause the information security breach incidents. In the case that companies continuously use private information for business purpose, the organizations as a whole need to respond to the situation. Particularly transactions between businesses ask those in charge of dealing with the information to keep it safely for the protection of personal information. Businesses are supposed to make profits but that`s not all. They are related to many others and the range of business is large. In that sense they serve as a social being affecting many different stakeholders. In particular, the information they collect while carrying out their business is a very important resource, but managing the information accompanies an inherent risk of breach incidents led to liability to damages. Therefore it is more important than ever to see personal information as a risk inherent to business and build an appropriate risk management system for the information.
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