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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 : 12권 1호 (2015)

발간사(發刊辭)

정경영
한국금융법학회|금융법연구  12권 1호, 2015 pp. 3-4 ( 총 2 pages)
1,000
키워드보기
초록보기

우리나라의 금융소비자 보호

노철우 ( Chul Woo Rho )
한국금융법학회|금융법연구  12권 1호, 2015 pp. 3-26 ( 총 24 pages)
6,400
초록보기
2008년 글로벌 금융위기는 탐욕스러운 금융기관에 대한 감시의 필요성을 제고시키는 동시에 금융소비자 보호의 중요성을 깨닫게 하였다. 그 결과 선진국들은 금융소비자보호 조치들을 취했는바, 미국은「2010년 도드-프랭크법」에 따라 금융소비자보호국(CFPB)을 설립하였고, 영국은「2012년 금융서비스법」에 의해 소비자보호원(FCA)을 창설하였다. 우리나라에서는 2012년 대통령 선거를 앞두고 활발히 전개된 금융감독체계 개편 논의의 일환으로 금융소비자보호기구의 설립이 거론되었다. 한편 금융소비자보호에 관한 정부안과 국회의원안들이 2011년 이래 제안되었지만 아직 시행되지 못하고 있다. 2012년 7월 6일 제출된 정부의 최종안도 국회에 계류중이다. 이 논문의 제2장은 우리나라 금융소비자보호법들의 법적 체계를 기술하고 분석한다. 제3장은 주로 정부의 금융소비자보호법안의 내용들을 고찰한다. 제4장은 이 논문의 결론을 내린다. 우리나라의 금융소비자보호법들은 크게 3가지, 즉 헌법·소비자기본법·기타 개별 법률로 분류할 수 있다. 기타 개별 법률에는 예금자보호법, 약관규제정부안에 따르면 금융감독원 내에 금소원을 설치하되 인사·예산·업무상 독립성을 강화하여 준(準)독립기구화하는 것으로 되어 있다. 하지만 인사, 예산에 있어 어느 정도 금융감독원의 간여(금소원장은 후보추천위원회의 추천을 받아 금융감독원장 제청으로 금융위원회가 임명하고, 금소원 예산은 금소원이 금융감독원과 협의하여 편성하고 금융위원회가 승인)를 받도록 되어 있다. 이에 비해 대부분의 국회의원안들은 금소원을 금융위원회의 하부기구로 설립하는 것으로 제안하고 있는바, 금융감독원에 대한 금소원의 독립성을 보다 더 높이고 있어 바람직하다고 본다.법, 독점규제 및 공정거래에 관한 법률, 전자금융거래법, 전자상거래 등에서의 소비자보호에 관한 법률, 신용정보의 이용 및 보호에 관한 법률, 금융위원회 설치등에 관한 법률 및 금융업법 등이 포함된다. 금융업법에는 은행법, 보험업법, 자본시장법 등이 있다. 헌법 제124조는“국가는 건전한 소비행위를 계도하고 생산품의 품질향상을 촉구하기 위한 소비자보호운동을 법률이 정하는 바에 의하여 보장한다”라고규정하고 있다. 이러한 소비자보호운동에 대한 헌법적 보장은 곧 소비자의 권리를 전제한 것으로 이해될 수 있으므로, 소비자의 권리는 소비자보호운동을 규정한헌법 제124조에서 근거한 것으로 볼 수 있다. 이렇게 우리나라에서는 1980년 헌법에서부터 소비자보호운동에 관한 규정을 두게 되었으며, 1980년에는 이를 구체화한 소비자보호법이 제정되고, 2006년에는 이것이 소비자기본법으로 전면 개정되었다. 소비자기본법 제3조는“소비자의 권익에 관하여 다른 법률에서 특별한 규정을 두고 있는 경우를 제외하고는 이 법을 적용한다”라고 규정하고 있어, 동법은 일반법적 성격을 가지고 있다. 지난 글로벌 금융위기를 계기로 금융소비자 보호의 중요성을 재인식하게 되어 금융소비자보호법안을 마련하게 되었다. 동법안의 필요성은 1) 업권별 규제체계의 한계, 2) 금융소비자 보호에 관한 일반법의 부재, 3) 현 금융감독기구의 금융소비자보호 기능·조직 취약 등이다. 이에 따라 이 법안의 기본 방향을 ⅰ)사전 정보제공 - 금융상품 판매 - 사후피해 구제에 이르는 금융소비의 전(全) 과정을 규정할 수 있는 금융소비자보호에 관한 기본법 체계의 마련, ⅱ) 금융기관의 건전성 문제로부터 벗어나 금융소비자의 이익을 대변할 수 있는 금융소비자보호감독체계의 구축으로 설정하였다. 한편 위 법안의 주요 내용은 1) 기능별 규제체계 도입, 2) 판매행위 규제(6대 판매행위 규제 원칙 규정), 3) 과징금 제도 도입, 4) 손해배상책임 확보(사용자책임을 손해배상의 일반원칙으로 도입), 5) 신규업자(금융상품자문업·대출모집인) 신설, 6)분쟁조정제도 개선(소송중지제도 도입 등), 7) 금융소비자보호원(이하“금소원”) 설치등이다. 정부안에 따르면 금융감독원 내에 금소원을 설치하되 인사·예산·업무상 독립성을 강화하여 준(準)독립기구화하는 것으로 되어 있다. 하지만 인사, 예산에 있어 어느 정도 금융감독원의 간여(금소원장은 후보추천위원회의 추천을 받아 금융감독원장 제청으로 금융위원회가 임명하고, 금소원 예산은 금소원이 금융감독원과 협의하여 편성하고 금융위원회가 승인)를 받도록 되어 있다. 이에 비해 대부분의 국회의원안들은 금소원을 금융위원회의 하부기구로 설립하는 것으로 제안하고 있는바, 금융감독원에 대한 금소원의 독립성을 보다 더 높이고 있어 바람직하다고 본다.

신탁업자의 정비사업 시행참여에 관한 법적 연구

박근용 ( Kyen Yong Park )
한국금융법학회|금융법연구  12권 1호, 2015 pp. 29-60 ( 총 32 pages)
7,200
초록보기
Rearrangement projects make a contribution to the higher quality of housing life for people by improving deteriorated and faulty housing environments in urban areas. There are, however, many cases in which rearrangement projects are postponed in their processes due to the lack of professionalism and morality of the partnership, conflicting interests among the members of partnership, and low feasibility. In an effort to resolve those problems, they are preparing a plan to allow trust business entity to do rearrangement projects. If there are some institutional complementary measures taken, trust business entity will be capable of doing rearrangement projects in a professional and transparent manner and carrying out their affairs objectively, which means that there is a need to allow them to do such projects. Currently the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents is being revised (plan) to allow trust business entity to be entrusted with the direct implementation right by the property owners and do rearrangement projects on their own. However, the idea seems difficult to be realized for the following reasons: first, trust business entity have their limitations with the implementation of rearrangement projects as the subjects of public interest proj-ects; second, it is difficult to coordinate the interests of all property owners and carry on rearrangement projects only with trust agreements and rearrangement project implementation regulations; third, the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents has basic provisions only for the cases in which trust business entity do rearrangement projects, which does not correspond with the flow of project propulsion method through the establishment of partnership; finally, inefficiency can be caused in the propulsion of rearrangement projects by trust business entity. In other words, the need for trust business entity to participate in rearrangement projects is recognized, but it will be difficult to apply the method of getting trust from the property owners directly in the early stage of rearrangement project and working on the project. If that is difficult, the approach will not be much different from the loan-type (development-type) land trust. It is thus needed to revise the provision about the implementors of rearrangement projects in the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents and allow trust business entity to participate in the implementation of rearrangement projects. There should be discussions about the ways how trust business entity should be appointed and the scope of job delegation to them in order to allow them to participate in the implementation of rearrangement projects. It is important to select trust business entity for rearrangement projects in an objective and transparent manner and set a clear boundary of job delegation to the selected ones. It is also needed to have discussions about financing when trust business entity participate in the implementation of rearrangement projects. When trust business entity participate in the implementation of rearrangement projects, funds can be raised in diverse ways. However, financing issues should be resolved in the early stage of such projects. Furthermore, it is also required to define relations between trust business entity and professional management enterprises for rearrangement projects that have been managing rearrangement projects clearly and establish regulations about the limits on trust business entity`` liability for damages.

금융기관 지배구조의 개선방안

정찬형 ( Chan Hyung Chung )
한국금융법학회|금융법연구  12권 1호, 2015 pp. 65-95 ( 총 31 pages)
7,100
초록보기
1. As Korean financial institutions (especially banks, big insurance companies and financial investment institutions, hereinafter referred to as“big financial institutions”) did not adopt executive officer system, but introduced the systems of outside directors and audit committees after IMF economic regime from the year of 1998, the corporate governance of big financial institutions not only dose not harmonize with global standard of corporate governance but also got worse than the corporate governance before the amendment in IMF economic regime (namely, such amendment strengthened emperor management on the contrary). 2. Big financial institutions should adopt executive officers system under Korean Commercial Code (hereinafter referred to as“Code”) §§408-2∼408-9. 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. 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). For this purpose, the present financial laws should be revised. 4. Other financial institutions without executive officers except big financial institutions should have auditors instead of audit committees. Compulsory outside directors system to such financial institutions under financial laws should be abolished.
11,900
초록보기
This article has the purpose to study the basic legal principles in sanctions for violation of insurance business law of companies including corporate insurance agents and insurance brokers. We reviewed established theories about the capacity of corporation in the transactions and the ability of the criminal act of corporation, and then we reviewed some discussing point. First, does the insurance company has the legal capacity of corporations and capacity to act. Second, we treat representatives act as corporations act. We studied the legal capacity of corporations in the criminal and administration area. Third, we reviewed relationship between corporate responsibility and accountability of its employees. In the private transactions, we focus on the conduct of anyone around the business activities but in the criminal and administration area. We are interested in operating activities as well as the internal affairs of a corporation. Insurance Business Act admits administrative sanctions violations ability and its capacity to impose an obligation of the corporation. In private trade, the corporation is the direct responsibility of their representatives``s acts but the cor-poration is responsible for their employees act.

이사의 과다보수 환수방안에 관한 법적 연구

김희철 ( Heecheol Kim )
한국금융법학회|금융법연구  12권 1호, 2015 pp. 143-167 ( 총 25 pages)
6,500
초록보기
G20 summit meeting spotlight excessive compensation of board member and CEO of financial company. Trying to recoup any of these types of compensation, however, will create legal hurdles. Korean supreme court sentenced against recoup of compensation which is provided in article of incorporation or approved by shareholder meeting. In Disney, Delaware supreme court consider the board’s independent decision of the excessive compensation as business judgement. Legislative efforts to keep the FSB principles for sound compensation practice results into Section 954 of the Dodd-Frank Wall Street Reform and Consumer Protection Act of United States as well as Korean Guidelines for Sound Compensation of Financial Companies. The author finds that the Korean claw back guidelines are well combined both of the equity based compensation and deferred compensation which also enables to long term corporate loss or profit. The author, therefore, insists the standard should apply not only financial companies but also listed non-financial companies. The reason is not because of that the Dodd Frank claw back provision applies all listed companies in the United States, but because of excessive compensation of board member of non-financial is far more serious than financial companies in Korea.

보험소송에서의 외래성의 입증책임 - 상해보험사건을 중심으로 -

김상수 ( Sangsoo Kim )
한국금융법학회|금융법연구  12권 1호, 2015 pp. 169-190 ( 총 22 pages)
6,200
초록보기
It is an very important problem what kind of fact the party who charges the insurance should prove by an insurance action. This study treats which party concerned should prove fact of external focusing on a personal accident insurance case. It is an important point specific contents that make up the fact of external, that is what is also included the fact that there is no disease in the body of the insured person. This study is intended to be examined while comparing Korea and Japan precedents and theories for such problems. Burden of proof of legally sufficient cause relationship that the facts and the results injury has occurred that is a function of the body from the outside is in the insurance claimants. Therefore, when two such fact has been demonstrated, it should be interpreted as also estimated that there is no disease insured. As a result, the fact that there is no disease in conjunction with external should be proven to the insurer. Such conclusion is based on the following basis. First, it’s that an insurance consumer should be protected. It’s meant that it’s very difficult to prove no disease insured in particular. The next is that no disease insured is a disclaimer in policy condition.

재보험계약상 사고처리협조조항

한창완 ( Changwan Han )
한국금융법학회|금융법연구  12권 1호, 2015 pp. 193-220 ( 총 28 pages)
6,800
초록보기
Traditionally, a reinsurance contract was considered to be an honorable agreement based on mutual trust and confidence between a reinsured company and a reinsurer. However, as the number of reinsurers and reinsured companies has dramatically increased, and the number of claims has significantly risen, the nature and structure of the reinsurance relationship has changed and disputes between reinsurance-contract parties have multiplied accordingly. Reinsurers often insist that they are not obligated to indemnify the cedent companies because these companies have breached their duties, as derived from claims clauses the reinsurance contracts. There have been few reinsurance cases between reinsurers and reinsured companies before Korean courts so far, but, in light of the changing nature of the relationship between reinsurance parties, many relevant future disputes may be resolved by courts instead of by mutual consent. Therefore, it is now useful to examine what claims clauses of reinsurance contract mean; how they interact with other reinsurance clauses or principles, such as follow-the-settlement or follow-the-fortune clauses; and how the breach of claims clauses affects reinsurers’liabilities. Because the legal principles of reinsurance have been developed by English and American scholars and courts, we should carefully examine those countries’reinsurance customs and principles and apply those findings to a reinsurance contract that would be governed by the law of Korea, if possible.

한국형 비과세 저축계좌제도의 설계방향에 관한 서론적 고찰

천창민 ( Changmin Chun )
한국금융법학회|금융법연구  12권 1호, 2015 pp. 223-263 ( 총 41 pages)
11,600
초록보기
The Financial Services Commission (hereinafter,“FSC”) unveiled its“Plan to Introduce a Korean version of Individual Savings Account (hereinafter, “KISA”)”in September 2014 followed by the ministry of Strategy and Finance’s announcement that it would adopt the KISA in connection with reforming the existing tax-exempt savings schemes. According to the Plan, a KISA is defined as a single account that holds diverse financial products and provides tax exemptions to any income. The KISA scheme is expected to take concrete shape after Korea-specific conditions (e.g., Korea’s existing tax-exempt financial products, the current state of savings and investments, and the financial income tax scheme), as well as a thorough review on overseas similar schemes, such as Individual Savings Account (hereinafter,“ISA”) in the UK, Tax-free Savings Account (hereinafter,“TFSA”) in Canada and Nippon Individual Savings Account (“NISA”) in Japan. Although little is known about the KISA scheme yet, the FSC’s September 2014 Plan offers rough outlines. Except for the income tax exemption on interests and dividends, the KISA scheme is expected to diverge from the ISA, TFSA and NISA schemes in many ways; eligible account holders, annual contribution limits, eligible financial products, types of tax benefits, etc. In the near future, the Korean government is expected to draw out its blueprint which maps out policy objectives and concrete designs for Korea’s tax-free savings account scheme. Tax-free savings account schemes in the UK, Canada, and Japan offer important, common implications for how to promote precautionary savings: First, savings and investments held by low- to middle-income earners must not face any withdrawal restriction, and second, financial consumers should be able to choose from financial products to suit their household needs and risk preferences. Arguably, how to design a tax-free savings account scheme has a significant impact on households’ financial asset accumulation, and interests among financial industries. The hope is that regulators will carry out an exhaustive review and comparison on overseas cases and apply the results to Korea’s current situation in order to establish a more complete tax-free savings account scheme.

전자자금이체에 관한 연구

이창운 ( Chang Woon Lee )
한국금융법학회|금융법연구  12권 1호, 2015 pp. 265-320 ( 총 56 pages)
13,100
초록보기
Electronic Financial Transactions Act of Korea was enacted to solve the many issues associated with electronic financial transaction in 2007. And the amendment was made over 10 times since then. However, the problems associated with it also appears continuously in accordance with the continuous development of electronic financial transactions. Accordingly, in this paper, we studied the regulations and its problems and improvement of an electronic funds transfer among electronic financial transactions. This paper is composed of all seven chapters, the topics covered in each chapter are as follows : Chapter Ⅰ Introduction : South Korea``s payment system, enactment and amendment of Electronic Financial Transactions Act, and legal issues associated with electronic funds transfer are described. Chapter Ⅱ The significance of electronic funds transfer : Regulations on electronic funds transfer and the significance of electronic funds transfer in South Korea, the significance of electronic funds transfer in the foreign law were summarized. Chapter Ⅲ Legal relationship between the parties to the electronic funds transfer : Legal relationship between the parties to transfer payment, and legal relationship between the parties to collection transfer were studied. Chapter Ⅳ Legal issues associated with electronic funds transfer : Effective time of the electronic funds transfer, transfer error, loss or theft of the access material, assignment of the access material, transfer-related accidents, failure to transfer instructions, error transfer to the recipient were studied. Also my personal opinion about it was said. Chapter Ⅴ Legal issues of telecommunications financial fraud : The significance of telecommunication financial fraud and relief of telecommunications financial fraud victims were described. Chapter Ⅵ Problems and Solutions : We discussed the issues that require amendment of Electronic Financial Transactions Act and General Terms and Conditions for electronic financial transactions, and then proposed improvement measures. Chapter Ⅶ Conclusion : The main information of this papers was summarized.
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