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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 2호 (2015)
6,200
초록보기
ICT 환경 하에서 다른 분야와 유사하게 보험분야에도 변화의 움직임이 없지 않다. 보험증권의 전자화, 전자적 방법에 의한 보험료 및 보험금 지급 등 전자보험계약에서 발생하는 전통적인 쟁점 이외에 생명보험과 관련하여 최근 중요한 쟁점이 제기되고 있다. 생명보험 특히 보험계약자와 피보험자가 불일치하는 타인의 생명보험에서 피보험자의 생명의 이익을 보호하고 도박보험을 방지하기 위해 우리 상법 제731조는 타인의 생명보험계약이 효력을 가지기 위해 피보험자의 서면동의를 요구하고있다. 피보험자의 서면동의에 관해 학설의 대립은 있지만 우리 판례는 매우 엄격한 입장을 견지하고 있다. 반드시 피보험자의 서면동의가 요구되고 묵시적 동의는 물론 구두에 의한 동의도 허용되지 않으며, 사전동의가 요구되므로 보험계약이 체결된 이후에 행해진 피보험자의 추인도 이미 무효인 보험계약을 유효하게 하지 못한다는 입장이다. 동의가 무효일 경우 보험계약도 무효가 되어 보험사고가 발생하더라도 보험수익자는 보험금을 수령할 수 없게 된다. 다만 최근 피보험자의 동의의 철회에 관해 판례는 보험계약이 체결되었을 당시의 사정이 변경되었을 경우 피보험자의 동의의 철회를 허용하고 있다. 타인의 생명보험에서 피보험자의 동의를 요구하는 것은 대륙법에서 흔히볼 수 있는 특징이고 영미법에서는 손해보험에서와 유사하게 피보험이익을 요구함으로써 피보험자의 서면동의를 대체하고 있다. 다만 최근 일부 주의 법률과 판례에서 피보험이익 이외에 피보험자의 보험계약 체결에 관한 인식과 서면동의를 요구하는 추세가 생겨나고 있다. 대륙법에서는 물론 미국의 일부 주법에서는 타인의 생명보험계약이 전자적으로 체결될 경우 피보험자의 동의의 서면성으로 인해 그리고 그 해석의 엄격성으로 인해 보험계약이 무효로 될 가능성이 매우 높다. 따라서 생명보험계약의 전자화는 피보험자의 전자적 동의가 허용되는가 하는 점에 의존하게 된다. 이 논문은 타인의 생명보험에서 피보험자의 동의의 전자화의 가능성을 모색하였다. 우리나라의 경우 전자문서 및 전자거래기본법과 전자서명법에 따라 보험계약도 전자화될 수 있지만, 타인의 생명보험에서 피보험자의 서면동의의 취지를 고려할 때 단순한 전자동의만으로 전자적으로 체결된 타인의 생명보험이 유효하다고 보기는 어렵다고 본다. 전자적으로 체결된 타인의 생명보험계약이 유효하기 위해서는 공인전자서명이 첨부된 피보험자의 동의는 물론 피보험자의 진정한 의사를 확인할 수 있는 추가적인 합리적 수단이 요구된다고 본다. 그리고 이를 위해서는 전자적 동의를 허용하도록 상법 제731조의 개정이 요구된다고 보며, 추가적인 합리적 수단은 동 규정에서 구체화하기보다는 기술적 중립성의 관점에서 추상적인 기준을 설정하는 것이 적절하다고 본다.

금융기관의 회계처리기준에 관한 연구

이진효 ( Jin Hyo Lee )
한국금융법학회|금융법연구  12권 2호, 2015 pp. 27-59 ( 총 33 pages)
7,300
초록보기
This article intends to review the inconsistency between accounting stipulations of Financial Law and K-GAAP, and to propose improvement recommendations. 1. The name and scope of the financial statements in Insurance Companies should be revised. In other words, the name of ``balance sheet`` should be changed into ``statement of financial position.`` Also, ``statement of appropriations of retained earnings`` (or ``statement of disposition of deficit``) should be excluded in financial statements. 2. Both ``ordinary shares(capital stock-common)`` and ``preference shares (preferred capital stock)`` have been contained within equity according to Korean Commercial Code. Whereas, K-GAAP have been divided a ``preference shares`` into a financial liability or an equity instrument. But ``preference shares`` should not be divided into financial liability in order to protect creditors. 3. Dividends should be calculated by deducting ``unrealized gains`` as well as ``capital adjustments,`` ``unappropriated retained earnings`` from the net assets on the balance sheet. Also, Quarterly dividends should be calculated by deducting ``unrealized gains`` from the net assets on the balance sheet of the preceding period for the settlement of accounts.

금융투자업자에 대한 외국환거래제도의 개선방안

김용재 ( Yong Jae Kim )
한국금융법학회|금융법연구  12권 2호, 2015 pp. 63-90 ( 총 28 pages)
6,800
초록보기
Since 2013, the Korean financial regulators have made some financial reforms to develop promising business entrepreneurs, ease corporate financing, and strengthen the competitiveness of the Korean financial industry following to the rapid change of an economic, financial environment worldwide. In the meantime, the regulators have felt that the portfolio diversification strategy through investment to foreign securities markets and the globalization of capital transactions are in particular very important for the increase of people``s wealth overall in the low-growth, low-interest time with a number of aging peoples, Foreign exchange transaction authorities have implemented some policies for reducing the vulnerability of capital flows and stabilizing a domestic foreign exchange market, which include three kinds of actions for macro-soundness of the foreign exchange market : ① an apportionment for the soundness of a foreign currency, ② the position limit of forwards, ③ taxations against bond investments by foreigners. These methods are adopted in order to prevent a very short-term capital flows in the foreign exchange transaction market. It should be noted, however, that the weight of short-term capital flows are very high in comparison with mid-term or long-term capital flows in Korea. Strengthening the function of a capital market result in the growth of mid-term or long-term capital flows eventually, by increasing outbound foreign investments and inducing inbound long-term investments. For this purpose, the Foreign Exchange Transaction Act and the Capital Market Act should be improved harmoniously. The revision of the Capital Market Act in 2013 based on the negative system have reserved open seats for the Korean version of an investment bank. However, the Foreign Exchange Transaction Act is a hurdle against investment banks because it imposes on various mechanisms prohibiting the engagement of a new business by investment banks through the positive system. This is the case of an investment bank in Korea, and a general brokerdealer is same to or much worse than the investment bank. The negative system of the Capital Market Act can not harmonize with the positive system of the Foreign Exchange Transaction Act. This paper aims to improve the foreign transaction system of Korean broker-dealers harmoniously by analyzing and comparing the merits and weaknesses of those two Acts.

핀테크 업체의 P2P 해외송금 서비스 허용을 위한 외환규제 완화에 대한 고찰

김동주 ( Dong Ju Kim )
한국금융법학회|금융법연구  12권 2호, 2015 pp. 93-121 ( 총 29 pages)
6,900
초록보기
The recent wave of Fintech innovation is sweeping across the globe. Our government, in an effort to keep pace with this global trend, shows strong commitment to develop this fast-growing industry. But, in reality, the domestic Fintech industry faces more obstacles than key developed countries due to an over-regulated financial system. Cases demonstrate that innovative technology and business models are in effect prevented from launching their services due to legal barriers. For instance, Fintech company ``Tomato Solution`` developed a ``Peer-to- Peer (P2P) cross-border payments service``. Its business model enables transfers to happen locally by matching a customer who intends to transfer money abroad with another customer who is a recipient in the opposite direction, and achieves the intended transaction without actually transferring the money through international borders and avoiding costly fees. However, this model corresponds to what is commonly known as ``hwanchigi`` (or, alternative remittance systems resembling ``hawala``), which under our law is not only in direct violation of the ``Foreign Exchange Agency Principle`` under Article 8 of the Foreign Exchange Transactions Act but also potentially contravenes with ``Reporting on Methods of Payment or Receipt`` requirements under Article 16 of the same Act, meaning that this company cannot lawfully launch its services. In the UK, on the other hand, there are no such limits on foreign exchange and we can see firms like ``TransferWise`` which operate online based on the same model. The company``s charges are 0.5% of the transfer sum, an amount equivalent to around one-tenth of conventional cross-border money transfers using financial institutions. This has won TransferWise a competitive edge in the cross-border money transfer market. TransferWise has transacted 4.5 billion dollars in the last 4 years. As we can see from the ``TransferWise`` case, allowing Fintech companies to provide P2P cross-border payments services benefits users in terms of cost and convenience. Also, it prevents potential dangers of these services being drawn into the shadow economy while making room for promoting the Fintech sector and enhancing competitiveness of conventional channels. Therefore, measures are called for to lower the existing barriers for Fintech companies to enter the P2P cross-border money transfer market as soon as possible. This study looks into ways of introducing prompt deregulatory measures and proposes a ``foreign exchange services`` system which would allow operators (non-financial institutions) to send or receive foreign currency limited to a small amount, as is the case in Japan. I believe that our government needs to be more proactive in promoting the Fintech industry in light of the significantly improved domestic economic conditions as well as the fact that our Fintech companies need to compete with fast-growing companies from advanced countries in the world market.

국제대출계약서의 주요 조항 및 법적 쟁점 -Loan Market Association 표준계약서를 중심으로-

김채호 ( Cha Eho Kim )
한국금융법학회|금융법연구  12권 2호, 2015 pp. 123-153 ( 총 31 pages)
7,100
초록보기
In bilateral or syndicated money borrowings in the international money market, most financial institutions use their own individual loan agreement, which is largely based on the Loan Market Association``s (LMA) standard form. Key provisions in most of these loan agreements share common features, which reflect customs that have developed over a long period of time in the international money market. Basically, a loan agreement is a contract for money borrowing and in that sense, it mainly stipulates the rights and obligations of the lender and the borrower applicable to such parties with regard to a particular borrowing. Key provisions of a loan agreement include Commitment, Utilisation, Repayment, Prepayment, Interest, Yield Protection, Conditions Precedent, Representations and Warranties, Covenants, Events of Default, Governing Law, and Jurisdiction clauses. Each provision is negotiated and agreed between the lender and the borrower and reflect the nature of the individual transaction. Compared with a loan agreement in the local Korean money market, a loan agreement in the international money market includes additional provisions to protect lenders in the Representations and Warranties, Conditions Precedent, Covenants, and Events of Default clauses. Such detailed provisions should be considered to be included in loan agreements for the local Korean money market and loan agreements for project finance transactions.

은행대리업의 도입에 관한 제언

도제문 ( Jae Moon Do )
한국금융법학회|금융법연구  12권 2호, 2015 pp. 155-181 ( 총 27 pages)
6,700
초록보기
The purpose of this article is to suggest the introduction of bank agent service system to Korea. "Bank Agency Service" means a business performing any of the following acts such as (i) an agent or intermediary for conclusion of a contract on acceptance of deposits or installment savings, etc. ; (ii) an agent or intermediary for conclusion of a contract on loans of funds or discounting of bills ; or (iii) an agent or intermediary for conclusion of a contract on exchange transactions on behalf of a bank. This article consists of 6 chapters covering the concept and function of agency in commercial act, the introduction of bank agent service system in United States and Japan and the expected effects, etc. The major expected effects of bank agent service system are as follows. First, bank agent can contribute to the better service at the windows by widening of business offices. Second, bank agent service can help dissolve the personal backlog problem and work out the new business strategies. Third, principal bank can make the most of the business foundation of enterprise that combine bank agent with other businesses. In relation to the introduction of bank agent system, there are challenging problems to be considered. First, a sound and appropriate measures should be taken to prevent the unfair transaction or abuse of customer``s information. Therefore a strict and thorough supervisory system is necessary. Second, bank agent is inclined to be tempted to handle the loan business negligently to raise the business performances. To avoid the bad loan assets, effective monitoring and compliance system should be considered. Third, one of the most important and critical issues is the compensation liabilities of principal bank. In conclusion, the writer of this article thinks that the expected benefits of bank agent service system are predominate the problems related and hereby suggests the introduction of the bank agent service system for the better custom services.

기왕증감액약관 -대법원ㅤ2015.3.26.ㅤ선고ㅤ2014다229917,229924ㅤ판결-

남하균 ( Ha Kyoon Nam ) , 장덕조 ( Deok Jo Jang )
한국금융법학회|금융법연구  12권 2호, 2015 pp. 183-207 ( 총 25 pages)
6,500
초록보기
This paper is to study and analyze recent important cases held by the Korean Supreme Court. The personal accident insurance has been dealt on the issue of reduction of the claim. The court holds that insurance company can subtract the claim in the ratio of the already suffered disease. However the holding needs to be scrutinized in the aspects of the nature of a personal insurance. This paper also debates the explanation duty of an insurer as applied to insurance coverage disputes. Courts and most scholars have argues for the soul of contract law. Under the traditional contract theory, the assent of both parties to the terms of an agreement is necessary for creation of an enforceable contract. Provisions excluding or limiting coverage, according to the theory, would not be enforceable because of "substantialness". However, it is very difficult to discern the substantial clause and the non-substantial. And so forth, this paper also explorers some the point at issues of insurance law. In this Paper, I enunciate some suggestions of the reasonable theory to our debate about the legal nature of insurance policy.

자동차손해배상보장사업 청구권대위에 관한 고찰

김성완 ( Seong Wan Kim )
한국금융법학회|금융법연구  12권 2호, 2015 pp. 209-239 ( 총 31 pages)
7,100
초록보기
Government operates Government Compensation System to make compensation for victim from car accident by hit-and-run or uninsured driver under the article 30 (1) 1. & 2. in the Act on Guarantee of Compensation for Loss Caused by Automobile. And the insurers of Government Compensation System commissioned by Ministry of Land, Infrastructure and Transport performed subrogation right to inflictor who has liability for damages apropos of victims. Whereupon, there are some arguments as regards subrogation right that is to protect double benefit of victims by the insurers of Government Compensation System commissioned by Ministry of Land, Infrastructure and Transport, i.e., the insurers exercising rights to demand a reimbursement against for inflictor who has liability for damages apropos of victims in the Act on Guarantee of Compensation for Loss Caused by Automobile and other insurers which compensated victims from car accident by hit-and-run or uninsured driver priority to the insurers of Government Compensation System could be acting right to indemnity to the insurers. Therefor this article is intended to suggest that insurers of Government Compensation System need to exercise the right to indemnity for parents of minor and family living in the same house who take an charge for liability for damage at the Act on Guarantee of Compensation for Loss Caused by Automobile. And also expressed that right to indemnity of National Health Insurance Corporation and designated driver insurer compensated victim who got a accident from hit-and-run or uninsured driver in stead of insurers of Government Compensation System was restricted to insurers of Government Compensation System.

임원보수 공시에 관한 쟁점의 검토

염미경 ( Mi Kyung Yum )
한국금융법학회|금융법연구  12권 2호, 2015 pp. 241-272 ( 총 32 pages)
7,200
초록보기
After the global financial crisis in 2008, the scope of executive compensation disclosure has been expanded. Pursuant to Section 953(a) of the Dodd-Frank Wall Street Reform and Consumer Protection Act, the Securities and Exchange Commission recently propose rules that would require many US SEC registrants to disclosure the relationship between executive compensation actually paid and the company``s financial performance. It implies that In the US the most important criterion to assess executive compensation is the alignment of CEO pay with performance. ISS has multipronged approach to assessing executive compensation for the purposes of recommending a vote for or against the management say-on-pay proposal. The most important criterion is the payfor- performance assessment, and that the most important factor under this payfor- performance assessment is the alignment of CEO pay with total shareholder return. In Korea under the Financial Investment Service and Capital Markets Act §159(2), executive compensation more than 5 hundred million Korea won of any registered director at any listed company should be disclosed with the formula on the compensation. This article suggests that the disclosure of executive compensation should be applied to give shareholders information on pay-forperformance assesment.

장기주주를 육성,지원하기 위한 테뉴어 보팅(tenure voting)

문준우 ( Jun Woo Mun )
한국금융법학회|금융법연구  12권 2호, 2015 pp. 275-304 ( 총 30 pages)
7,000
초록보기
Tenure voting is known as time-phased voting, time-weighted voting. It gives the long-term shareholder additional voting right and dividend. Many foreign countries can issue tenure voting. For example, these countries are U.S., France, Italy, Netherlands and so on. Corporations such as Lafarge·PSA Peugeot Citroen·LVMH·L``Oreal Group·Electricite de France·L``Air Liquide SA·Credit Agricole·ABN AMRO Holding·Unilever issue tenure voting. But Korea can not issue tenure voting because Korean commercial code 369(1) prohibit tenure voting. Korean commercial code 369(1) is that "Every shareholder shall have one vote for each share". Because tenure voting is able to reduce a harmful effect caused by short-term shareholder and promote long-term shareholder who see the company from a strategic and long-term point of view and have much merits, Korea will be enable corporation to issue tenure voting.
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