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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 : 13권 1호 (2016)
12,900
초록보기
Merger between financial institutions is accomplished through business judgement of each company subject to commercial law, competition law, securities law and other relevant laws. For financial institutions, merger activities are additionally restricted by financial laws and regulations due to its public nature and impact on the national economy. For above reasons, the Financial Services Commission has the ultimate authority to approve the merger of financial institutions. Most cases of domestic mergers among financial institutions are achieved according to the Act on the Structural Improvement of the Financial Industry ("Geum San Bup") due to expeditious merger process, tax benefit and diverse legal support. Despite of these merits, stockholders and creditors of the merging institutions cannot be given the procedural rights properly. Therefore, application of the provisions for expeditious merger process needs to be limited to merger cases involving insolvent financial institutions. Availability and accessibility of financial services should be sufficiently guaranteed to the affected personal customers and small/middle sized business in case of mergers of financial institutions. Contribution to global competitiveness, employment and innovation in finance industry should also be considered as one of the public interest factors. Merger between financial institutions expands size of the bank, which increases credit and systemic risk in financial industry. For this reason, financial authority needs to pay attention not only to loss absorption capability of the big bank but also to measures of safeguarding asset of depositors and customers. Cooperation between organizations is crucial in order to analyze the impact of mergers on customers, financial industry and national economy. Bank of Korea, Korea Deposit Insurance Corporation, consumer protection organizations and Fair Trade Commission should evaluate merger based on its own function and suggest corrective measures to set off the problems caused by merger. Modification of information related laws should be established in order to protect the right of customers with respect to personal and credit information, as well.
7,100
초록보기
Due to the recent developments in the financial information technology, quick, simple electronic means of payment are being introduced to replace the traditional methods of payment. This paper provides an overview of the electronic means of payment currently being used in the Republic of Korea ("Korea") and analysis of potential legal issues that may be raised in relation to the payment gateway ("PG") business. Chapter II of this paper discusses the instruments of electronic payment presently being used in Korea and various businesses related thereto. In order to utilize the instruments of electronic payment as compared to traditional means of payment such as cash, various service agents are required to participate in the relevant payment processes. The Electronic Financial Transactions Act ("EFTA") recognizes, among other things, electronic funds transfer, electronic debit payment instrument, electronic prepayment instrument, and electronic currency as means of electronic payment and defines an ``electronic financial business operator`` as a person who issues and/or manages such means of electronic payment. The EFTA further stipulates other electronic financial business operators who carry out certain functions in the electronic payment processes such as the agents who perform the electronic payment settlement agency service, operate the escrow system and Electronic Bill Presentment and Payment (EBPP) service. In addition, the EFTA defines a ``subsidiary electronic financial business operator`` as a person who assists in conducting electronic financial transactions or performs part thereof on behalf of a financial institution or electronic financial business operator or any operator of a PG system. Moreover, although not recognized under the EFTA as either an electronic financial business operator or subsidiary electronic financial business operator, there is a provider of telecommunications billing services who provides other types of electronic payment settlement services as recognized under the Act on Promotion of Information and Communications Network Utilization and Information Protection, etc. ("APIC") Chapter III addresses the legal issues that may arise in connection with the PG business in Korea. Specifically, Chapter III discusses the legal relations involved in the PG business which are analyzed in terms of the Specialized Credit Finance Business Act, EFTA and APIC in connection with the actual instances in which such issues have arisen in practice. Finally, Chapter IV summarizes the interactions and inconsistencies among the various laws/regulations that address the PG business in Korea and makes suggestions to improve such laws/regulations.

자율주행자동차 운행에 대비한 책임법제와 책임보험제도의 정비필요성: 소프트웨어의 흠결, 설계상 흠결 문제를 중심으로

이중기 ( Choong Kee Lee ) , 황창근 ( Chang Geun Hwang )
한국금융법학회|금융법연구  13권 1호, 2016 pp. 93-121 ( 총 29 pages)
6,900
초록보기
Autonomous vehicles that drive themselves are becoming a reality and have the potential to drastically change many aspects of transportation, particularly safety. But, when autonomous cars eventually crash, it is unclear whether the current liability and insurance regimes for automobile accidents are well-suited to tackle the issues "Who is liable?", and "Who is to pay insurance bill?". The current Korean liability system for automobile accidents is heavily based upon the concept of "a car operator" who controls and benefits from the operation of his car, and auto liability insurance regime has well developed to cover this operator liability, because 90% of car accidents are due to the negligence of such operators. On the other hand, current product liability regime pays the least attention to cars, and insurance for auto makers to cover their product liability is not available yet, because only 1% of car accidents is due to defects in cars, However, once autonomous vehicles come into use, it is expected that there will be a shift in liability from operators to makers. Firstly, the potential liability for car operators will dramatically decrease, because autonomous driving technology is very likely to reduce the number of injuries and fatalities caused by automobile accidents, On the other hand, the probable liability for car manufacturers would sharply increase because in autonomous vehicles most accidents would be due to defects in technology or equipments applied in autonomous cars. But, after close examination of the current liability and insurance regimes for auto accidents, we can find that it is still unclear whether there comes a shift in liability. Firstly, unless relevant provisions are to be amended, strict liability regime for a car operator may still subject owners of autonomous vehicles to the strict liability. Secondly, product liability regime, in particular, the regime for manufacturing and design defects is ill-suited to address the unique issues raised by autonomous vehicles. Typical example is the low possibility of product liability for a defect in software that will define the sequence of the operation in a autonomous vehicle. It is argued here that the legal system must adopt new policies that will advance the interests of car makers and potential plaintiffs alike. In particular, in order to allocate reasonable and fair liability upon manufacturers of autonomous vehicles, the manufacturers should be able to accurately gauge their liability costs. To accomplish such a shift and fair allocation in liability, both regimes for auto liability and auto insurance should be amended at the same time.

보험사기와 보험계약에서의 사기무효조항의 필요성에 관한 소고

강영기 ( Young Ki Kang )
한국금융법학회|금융법연구  13권 1호, 2016 pp. 123-156 ( 총 34 pages)
7,400
초록보기
The Discussion of insurance fraud are constantly being raised. And speaking of insurance fraud is mainstream that is usually discussed about the need for the enactment of the new Penal Code or special laws on insurance fraud in criminal legal perspective. However, in this paper, I would like to consider also about the direction of policy from looking at such as insurance fraud discussion in Japan related to the need for such a fraud invalid provisions, countermeasures of the IAIS (International Association of Insurance Supervisors) for insurance fraud, the duty of mandatory notice on the assumption that fraudulent behavior on the insurance contract from the contract legal perspective. The establishment of insurance fraud in the special law or criminal law and the need to punish fraud in terms of consumer protection and financial order guardian must be eradicated and strictly, the most fundamental problem is difficult to insurance groups eradicating the lack of awareness of the public about insurance fraud and generous a description of the attitude often seems, in fact, the insurer i.e. the insurance company substantially victims merely to pretend to be victims of fraud is the fact that the policyholder i.e. relevant members of insurance groups that intact sharing the increase in contribution rate due to insurance fraud that fact is not the mainstream view that intellectual rather surprising. With regard to insurance fraud, this paper is based on the idea that it means to ultimately prevent a potential victim of the damage to the insured in good faith to prevent damage to the insurer``s priority, not with the purpose to protect the insurer.

질병보험의 운영실태 및 법률관계에 관한 연구

장덕조 ( Deok Jo Jang )
한국금융법학회|금융법연구  13권 1호, 2016 pp. 159-184 ( 총 26 pages)
6,600
초록보기
This paper is to study the system and legal relationship of illness insurance. The Korean Commercial Act Article739-2 stipulates "Any insurer of a contract of illness insurance shall be liable to pay the insured amount and other benefits if a peril insured against causing a illness occurs", and the Article739-3 says "The provisions concerning life insurance and accident insurance shall apply mutatis mutandis to an illness insurance." There are closely related between Illness insurance and public medical insurance. According to the introduction of public insurance in Korean medical market, the accessibility to medical service for citizens in a blind spot of medical risk has improved and the size of medical market has been expanded. Therefore in this Paper, I enunciate some suggestions of the reasonable relationship to the debate about the legal nature of illness insurance. The issue on the introduction of private medical insurance is in fact embodying a dual conflicting objective of public spirit in medical service and efficacy in service delivery, the relative utility value of which is actually determined by the writer``s personal preference. This study tries to analyze the coverage and the legal relationship of the illness insurance, and propose the reasonable conclusion.
11,800
초록보기
The Bank of Korea has striven actively to respond to the financial and economic turmoil through diverse policy instruments such as reduction of base rate, encouragement of flows of funds to financial markets, stabilization of foreign exchange and foreign currency funding markets, and so forth. But the Bank of Korea did not have powers enough to overcome the financial and economic turmoil. So there were lively discussions in the National Assembly on the amendment of the Bank of Korea Act in order to strengthen the functions of the Bank of Korea such as financial stability and bank supervision. After tardy discussions on the revision of the Bank of Korea Act, the Act was amended in August, 2011. Major Revisions to the Bank of Korea Act are specifying responsibility for financial stability, enhancing access to information, improving emergency liquidity support facilities, improving the reserve requirement system, strengthening currency management, increasing retention of net profit, and enhancing accountability. As the importance of macro-prudential policies has grown globally-based on lessons drawn from the 2008 global financial crisis-the revision of the Bank of Korea Act is directed toward strengthening the financial stability role of the central bank in line with this trend. But there are some legal issues on the financial stability provisions in the Bank of Korea Act. In this situation, this paper is to analyze the specific legal issues on the financial stability provisions, and to suggest the desirable amendments of the Bank of Korea Act. First, the financial stability responsibility of the Bank of Korea should be specified more clearly. Second, The economic growth and employment stability should be included in the purposes of the Bank of Korea. Last, the Bank of Korea should have the powers to investigate, by written and on-site methods, the participating or operating institutions of the payment systems operated by either the Bank of Korea or the operating institutions.

업무집행관여자의 책임에 관한 독일 주식법과 상법의 비교연구

조지현 ( Ji Hyun Cho )
한국금융법학회|금융법연구  13권 1호, 2016 pp. 231-254 ( 총 24 pages)
6,400
초록보기
In Commercial Code of each country is specified the liability of the person, has affected the company actually with the power like directors, despite he is not a director. The Korean Commercial Code Art. 401.2 has been instituted in reference to the German Stock Corporation Act Art. 117. But both make a little difference. The Korean Commercial Code Art. 401.2 regulate widely the liability of the shadow directors, including de facto directors. In contrast the German Stock Corporation Act Art. 117 regulate only the liability of the person, with influence on the company has instigated the director an act, cause damage to the company. Consequently in German law the liability of de facto directors is resolved not by the Art. 117 but by the Art. 93. Therefore legal entity can not be a de facto directors. Legal entity is responsible by the company law relating to group (konzern law). The German Stock Corporation Act Art. 117 doesn``t regulate the liability of the shadow directors to a third party. So this liability in German law shall be resolved by the civil tort liability. In contrast the Korean Commercial Code regulate the liability for damage of the directors to a third party.
7,600
초록보기
Korean insolvency law recognizes the rights of secured creditors to have a priority for satisfaction of their claims from the assets securing their claims. Security over movables or security over receivables (the "Security") under the Act on Security over Movable Property and Receivables, etc. (the "Act") has a priority under the bankruptcy procedure and secured creditors may enforce their security outside the bankruptcy procedure. In this sense, the commencement of the bankruptcy procedure does not affect the rights of secured creditors. On the other hand, the commencement of rehabilitation proceedings affects rights of secured creditors. First, the Security established before the commencement of rehabilitation proceedings is treated as a rehabilitation security under the Korean insolvency law and secured creditors are not able to enforce their Security outside the rehabilitation proceedings. Second, upon commencement of rehabilitation proceedings, a security over future assets (i.e., future receivables or after-acquired movables) turns into the security over the assets existing as of the commencement of the rehabilitation proceedings. The Supreme Court decision on March 28, 2013 (2010da63836) ruled that receivables of the estate acquired after the commencement of rehabilitation proceedings are not subject to Yangdo Dambo over collective future receivables, created by the debtor before the commencement of the rehabilitation proceedings. This Supreme Court decision was rendered on Yangdo Dambo over collective future receivables, but the legal theory thereof will also apply to other security over future assets under the Act. Accordingly, movables or receivables of the estate acquired after the commencement of rehabilitation proceedings are not subject to security rights over future assets under the Act created by the debtor before the commencement of the rehabilitation proceedings.

스튜어드십 코드(Stewardship Code)의 도입에 관한 연구

김희철 ( Hee Cheol Kim )
한국금융법학회|금융법연구  13권 1호, 2016 pp. 295-316 ( 총 22 pages)
6,200
초록보기
The draft for Korean Stewardship Code to promote sustainable growth of listed corporations through investment, monitoring, and dialogue was disclosed on 2015. The draft, as expected, is similar with that of the other countries such as the United Kingdom, Japan, or Malaysia. The author explores the U.K. Stewardship as well as Japanese``s one and applies current Korean legal structures, then insists that, due to the impending repeal of shadow voting system in Korea, the Korean Stewardship should be more focus on active voting rights of institutional investors. The author introduces the aim of Stewardship code in Cadbury report and Walker report is to robust shareholder power to check boards`` excessive risk taking in the lead up to the financial crisis. But he insists that the first step for the importing stewardship code in Republic of Korea is should be to settle down by financial regulator supervision rather then Exchange``s best practices.
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