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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 3호 (2015)

인터넷전문은행 도입의 법적 이슈와 영향

정희수 ( Hee Soo Jung )
한국금융법학회|금융법연구  12권 3호, 2015 pp. 3-34 ( 총 32 pages)
7,200
초록보기
The most important issue for Internet-Only Bank is ``real name identification`` and ``limit ownership of bank by manufacturing companies``. While ``Non face-to-face real name identification`` issue was concluded as the government has altered the authoritative interpretation, ``limit ownership of bank by manufacturing companies`` issue requires more complicated solution. Transaction restriction of major shareholders, minimum capital level, scope of business, prudential regulations, examination standard for authorization are important issues for the introduction of Internet-Only Bank as well. It is desirable that same regulations should be applied to traditional banks and Internet-Only Bank, but in some fields, alternation of regulations for Internet- Only Bank is required as Internet-Only Bank has distinct characteristics. Moreover, stricter rules are required in terms of bank ownership structure, transaction of major shareholders, transparency of authorization process and liquidity crisis countermeasures. The market share of Japanese Internet-Only Bank in Japanese deposit market is still just around 1.61%. The impact of the introduction of Internet- Only Bank on domestic financial institution``s competitive composition would be insignificant. However, as Internet-Only Banks have price competitiveness, extension of influence on deposit and remittance market, intensifying competition with non-bank financial companies, expansion of fin-tech function regarding banking business, and improvement on online-channel are expected to be achieved in the near future. Therefore, the government should improve the efficiency of competition as new entrant is allowed into the banking business, and continuous improvement of regulations is also required to increase the benefit of financial consumers.
7,200
초록보기
Since June 2015, Korean financial authorities have tried to introduce an internet only bank in Korea. They expect that an internet only bank will facilitate the innovation of financial services through the combination of a finance and an IT and that it will enhance the level and quality of overall financial services remarkably. It is true that the introduction of an internet only bank will improve the accessibility of financial consumers to financial services by way of the best IT infrastructure in the world. In addition, the total welfare of financial consumers will be increased substantially due to lower interest and commission rates offered by internet only banks when comparing with those rates offered by traditional off-line banks. Thus, the introduction of an internet only bank will enhance the competitiveness of the Korean banking industry and provide an incentive to discover a new growth power with traditional banks which have been satisfied with a conservative banking business. Many people insist that the separation of a banking and commerce policy should be modified with the advent of a internet only bank. At present, a chaebol is not allowed to own more than 4% of total outstanding voting stocks of one bank under the Commercial Banking Act of Korea (hereinafter "Act"). Thus, an ICT corporation which is creative and innovative but can be regarded as a chaebol, will not be able to own an internet only bank. Of course, this ICT corporation may hold up to 10% of stocks subject to a condition that it never exercise its voting right in excess of 4%. However, this situation can not be a case because no one is interested in holding such a big amounts of stocks without any voting power. For this reason, some people argue that only existing financial institutions can participate in this kind of a new internet based business, whereas potential candidates with technology and innovation can not join in the internet only banking business, under the strict banking and commerce policy. In that case, the purpose of a internet only bank, that is the combination of a financial service and a new technology, can not be achieved easily and efficiently. The author absolutely agrees to the necessity of introducing a new competitive environment to the Korean banking industry. However, the author strongly believes that either the deregulation or the abolishment of the banking and commerce policy is a separate issue quite different from the introduction of an internet only bank. This belief is the starting point of this paper. Since 1950, the separation of a banking and a commerce has been the basic philosophy and fundamental policy of the Act in Korea. Thus, even though the internet only banking system is newly introduced, it must harmonize with this deep-seated banking and commerce policy. That is, the introduction of a internet only bank is not logically connected with the deregulation or the abolishment of the policy. Part Ⅱ briefly overviews the current ownership system under the Act. Part Ⅲ analyzes the separation of a banking and commerce policy in the U.S. which has been the strong model of the Korean banking system. Some one may be surprised to find that the U.S. policy has never been changed even though the U.S. authorities have approved many internet only banks since the end of 1990s. This part also studies the Basel Core Principles for Effective Banking Supervision (hereinafter "Core Principles") which provide the wise coping method for financial authorities who are encountered with the violation of ownership regulations. In particular, the Core Principles declares that the private effect of the violation is void and reversed. Part Ⅳ suggests the private effect of the violation of this banking and commerce policy in Korea based on the U.S. and Basel experiences. Part Ⅴ is the conclusion part of this paper.

자본시장에서 핀테크의 법적 쟁점

제정석 ( Jeong Seok Je )
한국금융법학회|금융법연구  12권 3호, 2015 pp. 73-120 ( 총 48 pages)
12,300
초록보기
This Paper intends to introduce the Fin-tech industrial policy and regulations are applied to the domestic capital market, review the various legal issues that are related with it. To carry into effect this, first it clearly defines the legal concept of ``capital market`` and ``Fin-Tech``, which is finally all or partial organic integration in human, physical and institutional environments for realizing innovative financial technology (Article Ⅱ). Next, considering the domestic Fin-Tech industry which is led by the government, this paper was briefly summarized government policies and the subsequent legislative progress relevant to the Fin-Tech since the beginning of 2013 until now (Article Ⅲ). Finally, this paper points out the implicit problems of legislation and policy related to capital market crowdfunding, mobile·internet securities trading, entrustment of electronic computer system, authentication for financial dealing and financial information protection and computational accommodations, and suggests the alternative opinions (Article Ⅳ, Ⅴ).

은행 공공성(公共性)의 법제화에 관한 연구

도제문 ( Jae Moon Do )
한국금융법학회|금융법연구  12권 3호, 2015 pp. 123-145 ( 총 23 pages)
6,300
초록보기
The purpose of this article is to add an opinion to the variable concepts of the public nature of commercial bank and to suggest its legislation into the banking act. Generally the concept of public nature is known as the public welfare although its contents are very vague and various. Commercial banks are originally and practically profit making corporation taking serious views of share holders interests. But the public nature of banks should be considered in maintaining its credibility, securing the protection of depositors, and facilitating smooth functioning of financial services, to ensure sound and appropriate operations of the business of banks, thereby contributing to the sound development of the national economy. The public Nature of the commercial banks and its autonomy to act business freely without restriction are not necessarily contradictory or conflicting. Writer of this article tries to tell the public nature in banking business from that of bank institution, because the institutional public nature can not be ignored while their business operations have a public nature in exercising their financial functions. The writer thinks the public nature of bank is the cost of its licence which allows to act banking business freely and without certain restriction targeting general public, there by creating credits. The writer also suggests the legislation of public nature of bank into the banking act so as to confirm the social responsibilities to consider the public welfare.

해외직접투자 정의와 관련한 제 문제

서문식 ( Mun Sik Seo )
한국금융법학회|금융법연구  12권 3호, 2015 pp. 147-179 ( 총 33 pages)
7,300
초록보기
Today when most advanced countries have abolished foreign exchange control regulations, the definition of foreign direct investment in such countries has meaning only for the purpose of statistics. In principle, each country should pay regard to the globally recommended standard definition for foreign direct investment. However, the Korean situation is not so simple. Given its ongoing foreign exchange controls, Korea needs a definition that serves the purpose of its foreign exchange controls. Though Korea has applied the same definition to both statistics and foreign exchange regulations, we may need two definitions each for statistics and foreign exchange control. The current Korean definition of foreign direct investment is somewhat different from that of the OECD Benchmark Definition, so it is not statistically comparable with other OECD countries. On the other hand the Korean definition also cannot satisfy Korean``s own purpose, foreign exchange controls because it reflects many characteristics of the OECD Benchmark Definition which are not relevant from the viewpoint of foreign exchange control. The examples for the former are : (1) the fact that a Korean parent company``s acquiring debt securities issued by foreign subsidiaries is excluded from foreign direct investment in Korea``s definition, but included in the OECD definition, and (2) the fact that foreign construction services, overseas flight or transportation services, etc. undertaken by a foreign branch of a resident company are excluded from Korea``s definition, but included in the OECD definition. An example for the latter is the inclusion of lower level affiliates of foreign direct investment companies into foreign direct investment enterprises even though such affiliates have little meaning for the purpose of foreign exchange controls.

전기통신금융사기와 관련된 전자금융거래법상 금융기관의 책임

김홍식 ( Hong Sik Kim )
한국금융법학회|금융법연구  12권 3호, 2015 pp. 181-212 ( 총 32 pages)
7,200
초록보기
Electronic Financial Transactions Act (EFTA) of Korea was amended on May 22, 2013. Among the amendment Section 9 of EFTA got a important issue because section 9 of EFTA is about Liability of Financial Institution related to Electronic Financial Transaction Fraud. Below is the section 9 of EFTA andunderlined is a new one that was not existed before amendment. Article 9 (Liability of Financial Institution or Electronic Financial Business Operator) ① the financial institution or electronic financial business operator concerned shall be liable for indemnifying him/her for the loss, in case of a user suffers any loss as a result of an accident under any of the following subparagraphs : 1. An accident arising out of forgery or alteration of the means of access. 2. An accident arising in the course of electronically transmitting or processing the conclusion of a contract or a transaction request. 3. An accident arising due to the use of the means of access acquired through deception or other improper means and unauthorized accessing of electronic devices or telecommunications networks for electronic financial transactions. As a result of amendment, Sec 9, paragraph 3, subparagraph 1 could be applied to electronic financial transaction fraud such as voice phishing, messenger phishing, pharming, memory hacking including reissuance of digital certificate. Also the scope of liability of financial Institution can be expand. In this research paper, some disputed points are discussed as below ; 1. What is an detailed content of EFTA sec 9 and 3 sort of accidents of sec 9, paragraph 1 of EFTA? 2. What kinds of electronic financial transaction fraud can be applied to accidents of sec 9, paragraph 1 of EFTA? 3. When can the user bear the liability that is originally belong to financial institution?

미국의 Regulation Crowdfunding에 관한 고찰

천창민 ( Chang Min Chun )
한국금융법학회|금융법연구  12권 3호, 2015 pp. 215-255 ( 총 41 pages)
11,600
초록보기
Crowdfunding is a compound word of "crowd" and "funding", meaning a practice where those in need of money raise small-scale funds from the general public via intermediaries mostly over the internet. In general, crowdfunding is classified into four types according to the purpose of funding activities and consequent benefits in return: donation-based, reward-based, lending-based, and securities-based crowdfunding. The CROWDFUND Act, included in the JOBS Act Title III on 5 April 2012, is the law establishing the rules applicable to securities-based crowdfunding in the U.S., and it mandated the Securities Exchange Commission ("SEC") to prepare for the implementing rules for the CROWDFUND Act. On 30 October 2015, at last, SEC adopted the long-waited implementing rules for the CROWDFUND Act, Regulation Crowdfunding. Meanwhile, Korea also set up its securities-based crowdfunding regime by amending to the Financial Investment Services and Capital Markets Act ("FSCMA"). The Korean crowdfunding regulation embedded in the FSCMA has been prepared modeling after the CROWDFUND Act. Therefore, both Korean and U.S. crowdfunding regulations share many common features. In some important, specific areas, however, it seems that some deficiencies are found in the Korean regime compared to the U.S.``s. In this regard, this article tries to overview some crucial aspects of Regulation Crowdfunding from the perspectives of issuers, investors and intermediaries in Regulation Crowdfunding. After exploring Regulation Crowdfunding and finding several regulatory gaps between the Korean and U.S. regulations, this article concludes with comments which may rectify the gaps.
6,700
초록보기
A director is defined as, "a person who is a member of the board of directors and has an authority to make a decision on execution of business through the board of directors". A director is appointed at a general shareholders`` meeting starts his/her duties by registering as a director and may leave office by removal, resignation etc. Korean supreme court stipulated that "According to article 388 of commercial law, if the amount of remuneration to be received by directors of company limited by shares has not been determined by the articles of incorporation, it shall be determined by a resolution by a resolution of a general meeting of shareholders. According to article 415 of commercial law, if the amount of remuneration to be received by auditors of company limited by shares has not been determined by the articles of incorporation, it shall be determined by a resolution by a resolution of a general meeting of shareholders. Retirement bonus for directors or auditors is deemed to be included in remuneration provided in article 388 of commercial law as a kind of remuneration paid as a consideration of service." USA case law considers remuneration of executives of a company should have reasonable relationship with value executives provided to a company. We can refer to USA Compensation Committee. On August 9, 2005 a court of Delaware state ruled that the board of directors of Walt Disney paid compensation for dismissal of 140 million dollar to Michael S. Ovitz did not violate fiduciary duty. This study examined a precedent that articles of incorporation or general meeting of shareholders approved remuneration of nominal directors. Supreme court stipulated that a director has a claim for remuneration regardless of whether a director conducted his/her duties actually except for a case a director was appointed nominally as a measure (appropriation or secret fund) to pay company``s fund to a person. Therefore, it should be noted that nominal officer has a claim for remuneration once he/she is registered as an officer.

중국법상 사채권자보호체계에 관한 연구

남옥매 ( Yu Mei Nan )
한국금융법학회|금융법연구  12권 3호, 2015 pp. 285-314 ( 총 30 pages)
7,000
초록보기
China tried to maintain control over the financial markets by placing strict limites on foreign financial institutions. But as the government felt the need to advance its bond market through foreign investors, it finally opened the corporate bond market and allowed foreign banks to issue and trade bonds in 2009 and now China``s bond market is the second largest market in terms of issuance. However, China``s bond market is lacking in some aspects and Chinese Securities Regulatory Commission (CSRC) makes laws about the Provisions for Issuance and exchange Corporate Bond in order to reform the bond market. Because of this, investing in Chinese bonds may be easier for realizing investment values because bonds`` principals and interest payments are legally protected unless the issuers default. The Chinese Company Law deems the protection of the bondholders same as the protection of company creditors, which is realized through methods such as ``piercing the corporate veil``, the subrogation right and cancellation right; The Chinese Securities Law focuses on security liquidity and protects investors including bondholders through the system of disclosure ; As a lower-level law which is based on characteristics such as the bond``s integrity and the bondholders`` dispersity, the CSRC``s regulation protects bondholders`` interest by having control over the bond contracts and bond management systems. In this paper the author researched on the system of bondholders`` protection, which offers foreigners a good opportunity to understand chinese bondholders protection system.

상장회사에 대한 주식매수청구권 배제에 관한 연구

김희철 ( Hee Cheol Kim )
한국금융법학회|금융법연구  12권 3호, 2015 pp. 317-340 ( 총 24 pages)
6,400
초록보기
Appraisal right is one of the most controversial topics addressed in corporate restructuring area in Republic of Korea. Even though the right is originated from the United States, there are some characteristics in Korea appraisal laws. One is appraisal price, and the other is the lack of market out exception. A shareholder who opposed the resolution of the board of directors with respect to triggering events may request the corporation to purchase the stocks she/he owns on the price determined by ``Financial Investment Services and Capital Markets Act`` or as an alternative ``court decision``. The price calculated in a manner falling under each of the following items : Average of final quotations of the stocks traded on the securities exchange and disclosed on a daily basis for two months, one month, and one week before the day immediately preceding the date the resolution of the board of directors is made, weighted by trading volume by real transactions. Market out exception is not imported in South Korea. The author introduces the function of appraisal rights and the premise of market out exception as well as the market-out exception provisions both of the Delaware state``s general corporation act and Model Business Corporation Act. The author appraises current Korean appraisal laws and the possibilities of importing market out exception in Korea appraisal laws.
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