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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 2호 (2014)

발간사

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

2014년 개정 상법 보험편의 해설 및 연구

장덕조 ( Deok Jo Jang )
한국금융법학회|금융법연구  11권 2호, 2014 pp. 3-43 ( 총 41 pages)
11,600
초록보기
Korean Insurance Contract Law was reformed in 2014. It took long time to be reformed after 1991 reformation. This paper is to analyze the reform of 2014 Korean Insurance Contract Law and suggest some tasks of the study and prospect its challenges. The 2014 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. However, after this paper review the insurance law and its study, it recommends new tasks of the study to address the issue of what must be dealt with to take reasonable care to progress of the Korean Insurance Law. The reformed law requires some amendment. It is said that the Reform would improve consumer protection by giving consumers the legal rights, also enhance the reputation of the industry by reducing the scope for insurers to rely on strict legal rights that are unfairly balanced in their favor. The law needs to be updated to correspond to the realities of a mass consumer market. In this process, the reformed act of other country would be a good model to us, and controversial issues of the bill could be a good guidance because the main problems are similar. A devoted and balanced study would improve confidence in the insurance law and insurance industry. In this respect this paper tries to study.

보증보험의 상법 편입과 향후 과제

정경영 ( Gyung Young Jung )
한국금융법학회|금융법연구  11권 2호, 2014 pp. 45-76 ( 총 32 pages)
7,200
초록보기
Guaranty Insurance is a kind of damage insurances and is aiming at compensating to obligee the damage from the default of obligation by obligor. It has the characteristics not only of insurance but also of suretyship that has been ruled repeatedly by supreme court and supported by main stream of theory. The Commercial Act was amended on March this year and is scheduled to be effective on March 12th 2015. Guaranty insurance was one of many insurances that has its source in Insurance Business Act but became to be one of major kinds of insurance of Commercial Act from now on. That amendment included the liability of insurer of guaranty insurance which is related to its definition and clarified some exceptions to guaranty insurance in application of some insurance rules in commercial act, which are §639 ②, §651, §652, §653, §659. And it manifested that some rules in Civil Act can be applied mutatis mutandis to guaranty insurance, which were confirmed by supreme court many times. Referring to the henceforth tasks of guaranty insurance, one of them is clarifying the criterion of differentiating guaranty insurance and quasi-guaranty insurance which are a fraternal insurance, suretyship contract, export guaranty insurance etc. Quasi-guaranty insurance were ruled recently by supreme court so that the differences between real and quasi ones got to have bigger meaning. Next, the monopoly of Seoul Guarantee Insurance in underwriting guaranty insurance contracts was criticized by scholar and business sector. But this paper suggests to take into consideration the essence of guaranty insurance and its influence of its opening on the market and national economy in deciding that policy. And the reduction policy of joint and several liability of guaranty while underwriting guaranty insurance contracts should be enforced after setting up the credit assessment system to prevent from the loss of innocent insurance policy holder. Finally, this paper points out some problems on introducing the privacy policy in guaranty insurance sector,

타인의 사망보험에 있어서 서면동의제도의 문제점과 개선방향

박기억 ( Ki Eok Park )
한국금융법학회|금융법연구  11권 2호, 2014 pp. 79-104 ( 총 26 pages)
6,600
초록보기
According to the Article 731 Paragraph (1) of Korean Commercial Code, a contract of insurance which cover the death of a third person as an insured event shall require the written consent of the third person at the time the insurance contract is concluded. Korean Supreme Court``s Judgement related with the interpretation of the above Article is,「According to the Article 731 Paragraph (1) of the Commercial Code, in a life insurance contract for third person, the point of time until the insured should make a declaration of intention by written consent is "until the conclusion of the insurance contract," and this is a compulsory provision. Therefore, any insurance contract violating it is null and void. If there is no written consent of the insured at the time of concluding the life insurance contract for third person, that insurance contract is conclusively null and void. The insured``s approval of the already void insurance contract cannot render the insurance contract valid」. The Supreme Court``s such as Judgement have many problems and very disadvantageous to insurance consumers. The insurer has an obligation to explain the terms of the standardized contract to the insured and according to the article 95-5 of the Insurance Business Act, an insurance company or a person engaged in insurance solicitation shall verify conclusion of dual contracts. Therefore in a contract of insurance which cover the death of a third person, improvements of the written consent system is to the insurer shall bear duty to verify of the written consent the insurer.

우리나라 적기시정조치제도의 현황 및 개선방안

노철우 ( Chul Woo Rho )
한국금융법학회|금융법연구  11권 2호, 2014 pp. 109-149 ( 총 41 pages)
11,600
초록보기
The prompt corrective action (PCA) system was introduced for the first time in Denmark in 1994 when CBSBA was enacted. The USA also introduced the System in 1991 in order to deal with a lot of troubled depository institutions by the Federal Deposit Insurance Corporation Improvement Act (FDICIA) of 1991. The PCA system of USA has been a successful and desirable model for many other countries. Korea introduced the PCA system in 1992 by the Monetary and Financial Operation Committee in the Bank of Korea as a prudential regulatory measure for the banking institutions. Just before the Financial and Currency Crisis in 1997, the System was implemented very well for the financial institutions such as banks, securities companies, and insurance companies. During the Crisis, the PCA system carried out the important role of restructuring measures for the many troubled financial institutions. Afterwards, the Korean PCA system has been reformed and improved gradually. Recently the System has played an important role in restructuring the troubled mutual savings banks in Korea. However, there are still some areas to be reformed and improved in order that the Korean PCA system works more properly and efficiently. This paper suggests three points. First, the purpose of the Korean PCA includes to minimize the possibility of putting the Public Fund into troubled financial institutions. Second, the forbearance (suspension) of the PCA should be abolished. Third, the power of the Financial Services Commission on the PCA should be checked by the Korea Deposit Insurance Corporation which manages deposit insurance funds in Korea.

금융기관 임원의 보수규제에 대한 고찰

이종호 ( Jong Ho Lee )
한국금융법학회|금융법연구  11권 2호, 2014 pp. 151-179 ( 총 29 pages)
6,900
초록보기
After the global financial crisis in 2008-2009, the global leaders understood the executives`` compensation has produced incentives for excessive risk-taking in the financial sector and such structure should be reformed in order to prevent the recurrence of crisis. In Korea also, executives`` compensation is always a controversial subject. Focal point is covered compensation system among corporations as well as irrelevant and improper remuneration comparing to business outcome. In the banking sector, self-regulatory code of "best practice on compensation structure" has been already implemented in 2009 and "Financial Investment Services and Capital Market Act" (FSCMA) was also amended in this regard in May 2013. According to the amendment, the executives`` remuneration exceeding 500Mil Won in a fiscal year and detailed standards for and methods of calculation thereof shall be reported for the public purposes. If the corporation``s accounting term fell at the end of last year, the remuneration of its executives exceeding 500Mil Won should be opened by the end of March 2014. Futhermore, the government and the members of parliament suggested newly an enactment of "Act on the governance of financial institutions". In case that this Act might be enforced, financial institution``s executives who are exempt from disclosure duty under the FSCMA at the moment should make their remuneration public. In this article, I review the progressive cases of executives`` compensation structure in other countries and our regulatory framework and views in the future. Also I suggest some improvements on the executives`` compensation structure which were not noticed before.

부동산 프로젝트 금융(PF)에서 시공사 신용보강에 관한 법적 연구

박근용 ( Kyen Yong Park )
한국금융법학회|금융법연구  11권 2호, 2014 pp. 181-224 ( 총 44 pages)
11,900
초록보기
In real estate development, fund-raising methods through project financing have been established as a common approach. In the old practice of real estate project financing, contractors offered credits such as joint surety, takeover of debt, completion guarantee, and sales guarantee for the debt of the project company for financial institutions. When a contractor offers credits for the implementation of a project, the project can be propelled in a stable and fast manner. However, many projects were carried out through the credit enhancement of contractors, it worked to deteriorate the financial soundness of the contractors. It even had negative impacts on financial institutions that had nothing to do with the projects via the contractors. Those problems have recently led to attempts at structuralization through new and diverse methods of credit enhancement including condition takeover of debt, secured loan commitment for unsold estate, and advance subscription and rent instead of the old credit enhancement method that imposed all the project risks onto contractors. However, there are no specific discussions about the legal effects of those new methods of credit enhancement. In addition, there are many cases in which a contract is concluded with the concerned parties having no clear perception of legal effects. Contractors are still burdened with ultimate risks with the possibilities of expediency and illegitimacy. Real estate development through project financing seems to continue its expansion, but the current practice of real estate project financing is nothing but an altered version of the old financing approach. The limitations of real estate project financing dependent on contractors should be overcome by searching for an investment structure proper for projects through structured financing and new institutions.

대출자책임소송과 그 시사점에 관한 연구

도제문 ( Jae Moon Do )
한국금융법학회|금융법연구  11권 2호, 2014 pp. 227-251 ( 총 25 pages)
6,500
초록보기
The purpose of this article is to call attention to financial institutions about the lender liability claims in a social atmosphere to stress the consumer protection. Lender Liability means US legal doctrine under which a lending bank may be held liable for a borrower``s financial losses that are directly or indirectly related to the bank``s actions. A bank is potentially liable for loans made in bad faith, refusing to advance new loans or credit extensions after promising to do so, taking a controlling interest in the borrower``s business, or foreclosing on borrower``s assets without proper procedure and notification. Lender liability is an umbrella term for a lender``s actual or potential liability to its borrower or third parties for claims relating to a loan. Almost every lender liability lawsuit contains the allegation that the lender had a good faith fiduciary relationship and that the lender has otherwise violated a duty to act in good faith and with fair dealing. In Korea, lender liability claims are still rare and unusual. But bankers should not misunderstand that they are always exempted from liability if they didn``t violate rules and contracts concerned. A yardstick of judgement to evaluate weather or not the rules or contracts are violated, when a borrower suffered damage by the inappropriate actions of bankers, is subject to change especially in the leaning toward consumer protection. Bankers should not only keep from inappropriate actions, such as misrepresentation, interferences, breach of contract and breach of duty of good faith, but also avoid to establish unnecessary special relations with borrowers to prevent allegation of fiduciary duty to customers when lender liability claims raised.

전자기록채권에 관한 소고 -전자어음과의 비교를 중심으로-

김정환 ( Jeong Hwan Kim )
한국금융법학회|금융법연구  11권 2호, 2014 pp. 253-307 ( 총 55 pages)
13,000
초록보기
Promissory note has been used as a method of payment in important trades among merchants, and because it had credit function aside from the payment function, it was a great help for merchants in solving liquidity problems. Paper-based bills however had many issues such as having the risk of getting stolen or lost, costly issuance and storage, and can cause series of nonpayment once the bill goes bankrupt. Accordingly, methods using IT technology that solves the problems that bills have and materializes the system that is simple to use have been being discussed. In Korea, the government and scholars came up with a measure to digitalize the bills itself and the Issuance and Distribution of Electronic Bills Act (Electronic Bills Act) was established in 2004, and the Act took effect in 2005, making electronic bill system work today. Meanwhile Japan legislated Electronically Recorded Monetary Claims Act, creating completely different method from the bills, and now four organizations are providing the service. Electronic bills are bills but electronically recorded monetary claims are designed in a way that they can be used like the bills. When used this way, it is very much like the bills, therefore it will be significant to compare two systems. This thesis will first go over the outline of Electronically Recorded Monetary Claims Act, compare the electronically recorded monetary claims and electronic bills in terms of development, transfer, and extinction of the rights, and then search for the implication on Electronic Bills Act through these comparisons. The biggest difference that was found by comparing two laws is the granting of effect on ``records``. Electronically Recorded Monetary Claims Act making the ``record`` of the record register of electronically recorded monetary claims institution the requirement to clear legal relations and preventing double transfer implies greatly. From now on, regarding the revision of Electronic Bills Act, granting certain efficacy on the ``record`` like from the Electronically Recorded Monetary Claims Act should be considered. Other than that, few regulations of Electronically Recorded Monetary Claims Act can be referred to when solving the problems of Electronic Bills Act.

자기거래제한규정의 해석에 관한 연구 -도식화에 의한 단계별 고찰을 중심으로

김홍식 ( Hong Sik Kim )
한국금융법학회|금융법연구  11권 2호, 2014 pp. 309-347 ( 총 39 pages)
7,900
초록보기
On April 11th 2011, the revision of the Commercial Act was passed in the National Assembly of the Republic of Korea. Among the various articles which were codified in the revision of the Commercial Code, article 398 (Transactions between Directors, etc. and Company) was criticised. Article 398 restricts a director of corporation to make a transaction with corporation without approval of the board of directors. Restriction of transaction between director and corporation prohibits a corporate fiduciary from appropriating to himself any benefit that rightfully belongs to the corporation to which he owes a duty of loyalty. In the article 398, transaction between director and corporation was defined like below; Article 398 (Transactions between Directors, etc. and Company) When a person falling under any of the following subparagraphs intends to engage in a transaction with the company for his/her own account or for the account of a third party, he/she shall in advance disclose material facts of the relevant transaction at the board of directors and shall obtain approval therefrom. In such cases, the approval of the board of directors shall be granted with two thirds or more of the total number of the directors, and the relevant transaction shall be fair in terms of its particulars and procedures : 1. A director or a major shareholder under Article 542-8 (2) 6; 2. The spouse and lineal ascendents or descendents of a person falling under subparagraph 1; 3. Lineal ascendents or descendents of the spouse of a person falling under subparagraph 1; 4. A company in which a half or more of the total number of issued and outstanding shares with voting rights is held by a person falling under any of subparagraphs 1 through 3, solely or jointly with others, or its subsidiary company; 5. A company in which a half or more of the total number of issued and outstanding shares with voting rights is held by a person falling under any of subparagraphs 1 through 3, together with a company falling under subparagraph 4. In this research paper, I made article 398 into diagram that has some steps. Some disputed points from each steps were reviewed throughout research paper. Premise is about who is party of transaction applied by article 398. Step 1 is about whether certain transaction was conflict of interest. Step 2 is about whether full disclose was made to the board of director, if certain transaction was conflict of interest. Step 3 is about whether that transaction was a fair to corporation. Step 4 is about whether damage related with breach of article 398 was happened.
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