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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 3호 (2014)

금융지주회사 CEO리스크의 법적 검토 - KB금융사태를 계기로 -

최영주 ( Young Joo Choi )
한국금융법학회|금융법연구  11권 3호, 2014 pp. 3-35 ( 총 33 pages)
7,300
초록보기
There has been a big dispute with regard to the corporate controlpower between the CEO of KB Financial Holding Company (FHC) and the CEOof KB Kookmin Bank in 2014. Though the system of FHC was introducedabout 14 years ago, the governance of it was not settled yet in Korea. This KBdisputes served as a momentum of this article. This article examines the causesof CEO risk regarding the system of corporate governance of FHC and suggestssolutions to reduce the risk. First, Supervisory Authorities (SA) and FHCs need to change their rulesin order to define detailed positive qualification of CEO candidates, which wouldprevent inadequate candidate (such as those who has powerful politicalbackground but do not have experience in managing financial companies) frombeing a CEO of FHC or its subsidiary bank. Second, SA and FHCs need to establish clear-cut lines of authority andresponsibility among the CEOs of FHC and its subsidiaries. Unclear line ofpower is a cause of disputes. Third and most of all, the system of board of directors and audit committee need to be reviewed. Though Korea introduced those system inorder to enhance the supervisory function of board on the management ofexecutive officer, the system did not work as it was expected. Finally, SA needs to review the long-standing system of the separationof banking and commerce and to reduce excessive intervention on themanagement of financial companies.

외국환거래법상 제3자지급 규제의 연혁

서문식 ( Mun Sik Seo )
한국금융법학회|금융법연구  11권 3호, 2014 pp. 39-77 ( 총 39 pages)
7,900
초록보기
The Foreign Exchange Control Act of Korea has a unique regulationwhich imposes reporting obligation on Korean residents when they remit/receivefunds to/from a resident or nonresident who is not a counterparty of atransaction. Applying this regulation to actual cases is never easy because itsliteral application may lead to unacceptable results from a common senseperspective. First, determining “a counterparty of a transaction” is not as easy asone may initially think. Next, it is very difficult to understand why settlementby or through agents should be regulated and why a settlement companylegitimately engaging in business should be regulated. Above all, it is hard tounderstand why this regulation is necessary to control foreign exchange. I traced the legislation history of this regulation, and eventually foundthat this regulation might be a product of misunderstanding and human error. There is a big difference between Japan`s 1979 foreign exchange control lawsand the corresponding Korea`s 1991 laws which were modelled on the 1979Japanese laws. Under section 17 of the 1979 Japanese Foreign ExchangeControl Act and the 1980 Ministerial Decree on Special Settlement Methods,Japanese residents had an obligation to report only when they remitted/received funds to/from other residents who were not contracting parties for the settlementof transactions between residents and nonresidents. However, under section 18of the 1991 Korean Foreign Exchange Control Act, a Korean resident had anobligation to report not only when they remitted/received funds to/fromresidents but also when they remitted/received funds to/from nonresidents. Asa result of this legislation, even cross-border remittance/receipt by or throughlegitimately authorized foreign exchange banks were included in restricted anddiscouraged behaviors. It seems that people who were involved in amending the KoreanForeign Exchange Control Act before 1991 might not have correctly understoodthe purpose of section 22 (DAESANG JIGEUB) of the then effective Act whichprohibited HWANCHIGI, thus unintentionally enlarging regulated behaviors whenthey paraphrased the wording in section 22 of the old Act to section 18 of thenew Act. As a result, Korea came to have a law regulating even cross-borderremittance/receipt by or through foreign exchange banks. However, thislegislation is far from the original purpose of regulating HWANCHIGI.

자본시장법 역외적용에 관한 소고

문만석 ( Man Seok Moon )
한국금융법학회|금융법연구  11권 3호, 2014 pp. 79-120 ( 총 42 pages)
11,700
초록보기
It is principal that application of domestic law is within the nation. Butin some cases, extraterritorial application of laws means that it is applied outsidethe national territory. There had not been any provision or precedent aboutextraterritorial application of Anti-Trust Law in Korea before the case of GraphiteElectrodes international cartel (2002). Extraterritorial application of laws wasapplied in this case. The legal basis of extraterritorial application wasestablished in Korean Anti-Trust Law 2-2 and Korean Capital Market Act. When deciding whether to exercise subject matter jurisdiction over aclaim brought by a foreign plaintiff alleging securities fraud, a court, as a generalrule, applies the effect test, the conduct test or a combination of the two. Inlight of the delicate international political concerns raised when courts assertjurisdiction over foreign actors or actions, however, courts should be careful toapply the anti fraud provisions only when international considerations warrantthe exercise of jurisdictionThis study is dealing with extraterritorial application regarding International Jurisdiction and its trend of discussion in Anti-Trust Law. By studying U.S. precedent about extraterritorial application in securities law, it will broaden thewidth of our view. The internationalization of stock market results in anincrease in unfair trading. This means that it is necessary to discussextraterritorial application of domestic capital law in depth. So we have toconsider the legitimate sovereignty of other nations, prevent extraterritorialapplication of the antifraud provisions of securities law, regulate unfairtransaction like securities fraud in advance, be prepared to have a consistentsystem of extraterritorial application.

생명보험전매제도의 체계적 연구와 입법론적 수용가능성

장덕조 ( Deok Jo Jang )
한국금융법학회|금융법연구  11권 3호, 2014 pp. 123-146 ( 총 24 pages)
6,400
초록보기
Viatical Settlement is part of newly introduced investment businessmodel that has started in US, it can be viewed as secondary market for Viaticalinsurance policies. This article examines the concept and features of "ViaticalSettlement" which derives from Anglo-American legal principles which allowtransfer of life insurance policies. The thesis reviews the institution``s feasibilityin Korea by taking Korea``s legal and social environment into its consideration. The thesis concludes that Viatical Settlement institution is not feasible, and itintroduces an alternative model. As far as the introduction of Viatical Settlementinto Korea is concerned, most have argued against it, but some have viewed itpositively. For instance, in 2009, a motion to introduce Viatical Settlementinstitution was tabled by members of the National Assembly and it even wentinto the deliberation process, though later on, was abrogated. The Korean Commercial Act does not provide for assignment, which isa form of comprehensive transfer of rights and obligations, but Article 731 Clause2 does provide for the limited assignment by the insurance beneficiary. Koreanlegal system requires consent of the insured in life insurance and it deniesinsurable interest in life insurance policies absolutely. Therefore, it can be said that Viatical Settlement institution is not fully accepted in Korea, due to its legalsystem.

정보유출배상책임보험에 대한 소고

김은경 ( Eun Kyung Kim )
한국금융법학회|금융법연구  11권 3호, 2014 pp. 149-175 ( 총 27 pages)
6,700
초록보기
Personal information leakage incident has occurred frequently. If thecompany dealing with customer information across all industries whereverpersonal information is being leaked such as game companies, mobilecommunication companies, portals, credit card companies, brokerage houses,insurance companies, etc. Personal information leakage even has an adverseeffect on the national economy. Therefore, on 29 Mar, 2011, the PersonalInformation Prospective Act was enacted to strengthen sanctions against theleakage and protect the personal information. Nevertheless, the personalinformation leakage is far unabated, and rather continue to grow. In addition,the number of leakages, contents and methods of information leakage arereaching increasingly serious and sensitive level. Paradoxically, the greater the amount of information to be protected inproportion to the development of information technology. Especially if thatinformation is trading in a particular industry is further emphasized the need forits protection. However, despite the importance of such protection, frequentinformation leakage causes heavy losses to the industry. Because of this socialdistrust of enterprises is increasing. The insurance is one of the most useful assistant systems that helpenterprises to act reliably. In particular, relatively to be free from responsibilityfor issues related to the damages to third parties in the course of leading acompany must use the insurance system. The introduction of informationleakage liability insurance is required. In order to compensate for the damagecaused by a third party information leakage, during the company``s operatingactivities. Insurance technical infrastructure must be established as aprecondition of smooth company activity. And we should consider how todefine the scope of the damage caused by information leakage indeed, definethe scope of the insurance accident and compensation paid by an insurer islimited to some extent whether. In addition, there are many problems to beresolved before the introduction of the liability insurance in accordance with theseriousness of the information leakage. Moreover, there has been a discussionfor operating the liability insurance as compulsory insurance but it should bejudged from a variety of perspectives to be reasonable.
6,000
초록보기
Section 619 of the Dodd-Frank Wall Street Reform and ConsumerProtection Act amends the Bank Holding Company Act by adding new section13 to generally prohibit, subject to exception, a banking entity, essentially anyentity within a holding company structure containing an FDIC insured bank,from engaging in proprietary trading and from acquiring or retaining anownership interest in or sponsoring a hedge fund or private equity fund. On December 10, 2013, the FRB, OCC, FD IC, the SEC, and the CFTCadopted the final version of the Volcker Rule. The Final Rule provides that"proprietary trading" covers Short-Term Trading Account, Market Risk RuleTrading Account, and Dealer Trading Account. The Rule is expected to reduce risks posed to banking entities byproprietary trading activities while permitting banking entities to continue toprovide client-oriented financial services that are critical to capital generation andliquid markets. The regulators suggest Appendix B outlining six factors that theagencies believe distinguish prohibited proprietary trading from permissiblemarket making. The author, however, examines the ambiguity and difficulty of the various tests which the regulators suggest and insists the ring fencingregulation is enough for Korean banking industry.

삼각합병과 삼각주식교환의 법률관계에 관한 연구

김홍식 ( Hong Sik Kim )
한국금융법학회|금융법연구  11권 3호, 2014 pp. 199-228 ( 총 30 pages)
7,000
초록보기
As contrasted with typical two-party merger, a triangular merger is amerger between three parties. In a triangular merger, consideration for stock oftarget corporation is given stock of a parent corporation instead of stock ofsubsidiary of parent corporation. The standard two-party merger transactionbetween acquiring corporation and target corporation may result substantialproblems. First, acquiring corporation becomes automatically liable for all debtsof target corporation. Second, acquiring corporation and target corporation mustobtain shareholder approval to effectuate merger. When acquiring corporation ispublicly-held, it may be expensive and troublesome to obtain the necessaryapproval of its shareholders. Finally, both corporations face possible exposurefor dissenting shareholder claims. To avoid these problems, corporation mayuse a wholly-owned subsidiary of the acquiring corporation to effect forwardtriangular merger. Reverse triangular merger involves same acquiring parent and sametarget corporation as in forward triangular merger, but it is used in situations inwhich it is desirable for target to survive and continue to hold its ownproperties. Such a situation could happen, for instance, when target corporation may hold a non-assignable franchise, long-term lease, trademarks, or othervaluable contract rights that cannot be transferred without third-party approval. Moreover, state or federal regulatory requirements may require preservation ofthe existing corporate identity of target. As a result of these considerations, reverse triangular merger iscommonly used in acquisitions involving banks, insurance companies and otherhighly regulated industries. In order to complete merger, a parent corporationforms a new subsidiary, which is merged into target corporation. Under mergeragreement, former target shareholders receive share of a parent corporation inexchange for their share of target corporation and parent corporation becomesthe sole shareholder of target. Comprehensive share exchange is a contract between a subsidiary of aparent corporation and a target corporation. All the share of parent corporationowned by subsidiary of a parent corporation should be exchanged with all theshare owned by shareholder of a target corporation according to contract. As aresult of comprehensive share exchange, a shareholder of a target corporationwill change into a shareholder of a parent corporation and a subsidairy of aparent corporation will be sole shareholder of a target corporation. In this research paper, Some disputed points from triangular merger andcomprehensive share exchange were reviewed according to category of triangularmerger and share exchange.

기업집단에 있어서의 회사 기관의 권한과 책임

김지환 ( Ji Hwan Kim )
한국금융법학회|금융법연구  11권 3호, 2014 pp. 231-260 ( 총 30 pages)
7,000
초록보기
The objectives of this paper are to examine the rights and liabilities ofdirectors or shareholder in group-affiliated company. Two or more companiesthat are related through common ownership but are treated as one for KoreanCommercial Law. An affiliated group consists of a parent company and one ormore subsidiary companies. The parent company must own at least 50% of itssubsidiary`s stock in Korean Commercial Law. But in another countries - forexample, America, Germany, Japan - Parent company means a juridical personwho controls the management of a stock company, including, but not limited to,a company which has a stock company as its subsidiary. Most large business affiliated groups are privately owned and managedby the founders and their families. In this affiliated groups, parent company willmost likely take control of the whole subsidiaries. In this regard, KoreanCommercial Law, which provides rules that individual companies within acorporate group have independent legal personality, is in many aspects far fromreality. So, I think, there is a need to be established for affiliated groups inKorean Commercial Law. This paper aims to look into plans to protect shareholders of parentcompany, and shareholders and creditor of subsidiaries. In cases where parentcompany intent to transfer the assignment of the entire business, or significantpart of the business, or entire stock of subsidiaries company, it must obtain theapproval of the parent`s shareholder meeting. If director of the parent companydetect any fact likely to causes substantial detriment to the subsidiary, they shallimmediately plan the solution such fact. There is need to investigate themultiple derivative suit between parent company and subsidiary company(all ofits issued shares to be acquired by parent`s company).

선의, 악의, 중과실 및 해의(害意)에 대한 정합적 해석의 시도

도제문 ( Jae Moon Do )
한국금융법학회|금융법연구  11권 3호, 2014 pp. 263-286 ( 총 24 pages)
6,400
초록보기
The purpose of this article is to research the meaning of a third personacting in good faith in the civil act and the commercial act, bad faith or by grossnegligence and the knowingly to the detriment of the debtor in the act of billsof exchange and promissory notes. In this article, the author brings questionsinto the prevalent theories and judicial precedents which are lack of integrity andconsistency according to the characters and purposes of the civil act, commercialact and act of bills of exchange and promissory notes. The author tries tosuggest that the meanings of “a third person acting in good faith” in the civil actand commercial act and “bad faith or by gross negligence” and “awaring that itwould harm the debtor” in act of bills of exchange and promissory notes shouldbe interpreted and applied consistently and systematically according to thepurposes or characters of the laws related. In conclusion the scope ofprotection in behalf of the third persons in commercial trade should be widerthan that of those in civil trade. And the holder of drafts or checks who isunaware of the detriment of the debtor should be more widely protected thanthe third parties in the civil or commercial trades.
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