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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 : 2권 2호 (2005)

발간사(發刊辭)

정찬형
한국금융법학회|금융법연구  2권 2호, 2005 pp. 3-4 ( 총 2 pages)
1,000
키워드보기
초록보기

지급결제제도의 감시와 중앙은행의 역할

정찬형 ( Chan Hyung Chung ) , 정경영 ( Gyung Young Jung ) , 도제문 ( Jae Moon Do )
한국금융법학회|금융법연구  2권 2호, 2005 pp. 3-80 ( 총 78 pages)
15,300
초록보기
The payment and settlement system means the systemic mechanism which clears and settles any debts derived from any economic activities by transferring monetary values. The Payment system in Korea consists of large value funds transfer system being operated by the central bank, net settlement system, securities settlement system and foreign exchange settlement system. Though the payment system play a role as a important infrastructure for the financial stability by transferring every payment funds, the payment system is vulnerable to a serious breakdown when the system meets obstacles because of any participant`s defaults or any computer net is paralysed by the worker`s strikes. The payment system is one of the important infrastructure including financial system, financial business and financial markets. Therefore the operation of stable and efficient payment system has deep relations with financial stability. In reference to these subjects, the Bank for International Settlement (BIS) enhances the standard of requirements to central banks concerning the operation and oversight of payment system. Recently, against the increase of interrelation between the inside and outside of the country and the rapid increase of payment volumes, the problem of system risks has been seriously recognized and the importance of oversight of payment system by the central bank has been emphasized. Consequently, many countries is tending to enable the central bank to oversee the payment system clearly by revising the related regulations and central bank`s acts. The revised Act of the Bank of Korea of 2003. 9. enabled the Bank of Korea to operate and oversee the payment system generally to achieve the stability and efficiency of the payment system. This articles touches and introduces the payment system and regulations related in Korea, the relation between the central bank and the payment system and the oversight system of the payment system in major countries and Korea.

위조수표에 대해 선의로 지급한 지급은행의 책임 -자금관계의 위임관계적 성질에서 재조명-

정경영 ( Gyung Young Jung )
한국금융법학회|금융법연구  2권 2호, 2005 pp. 83-115 ( 총 33 pages)
7,300
초록보기
To draw a check, drawer should open the check account and make contracts with bank previously which enables the customer to draw a check. And a check shall be drawn on a bank holding funds at the disposal of the drawer at the time of the presentment thereof and in conformity with an agreement, express or implied, whereby the drawer is entitled to dispose of those funds by check.(Check Act Article 3) Where the drawn check has such requirements and drawer`s genuine signature, the drawee bank can pay the check at the time of the presentment thereof and collect the amount from drawer`s account. May the drawee bank escape liability for payment of the amount thus paid by it on such check where the drawee bank is misled or induced to pay a check upon which the depositor`s signature has been forged? Payment by a bank of a forged check may be justified or excused on principles of estoppel or on the basis of negligence or misleading conduct by the depositor which directly caused the bank to pay the instrument. And under the Uniform Commercial Code, a person whose failure to exercise ordinary care substantially contributes to the making of a forged signature on an instrument is precluded from asserting the forgery against a person who, in good faith, pays the instrument or takes it for value or for collection. But if there`s no failure of the drawee bank to exercise ordinary care in paying or taking the instrument and the drawer made no contributions to forging and transferring the check, who should take the risk of forgery? It has been held that, since the bank has a strict duty to pay only authorized drafts on a customer` s account, the drawee bank should take the liability. But the contract between drawer and drawee bank is kinds of mandate contracts and Article 688 paragraph 3 of Korean Civil code, which provides that if a mandatary, without any negligence on his part, sustains damages through the management of the entrusted affairs, he may demand compensation therefor from the mandator. According to civil code, the drawer should bear the damage from forged check in case of no fault of both parties. But some other considerations of protection of consumers need to be regarded in unauthorized digital financial transactions.

은행법상(銀行法上) 대주주(大株主)의 이해상충규제(利害相衝規制)에 관한 연구

김용재 ( Yong Jae Kim )
한국금융법학회|금융법연구  2권 2호, 2005 pp. 117-139 ( 총 23 pages)
6,300
초록보기
Affiliate transactions between banks or their subsidiaries, on the one hand, and parent companies or non-bank affiliates, on the other hand, may result in conflict of interests. Furthermore, in case where bank managements are subject to factual influences from these interested parties, the safety and soundness of banks may be seriously damaged. The most representative one among these interested parties is either a majority shareholder or a parent bank holding company who may have a substantial influence on the elections and dismissals of bank managements. Almost of all the countries have provided troublesome conflict of interest transactions and strong fire-walls or chinese-walls against them, thereby protecting the safety and soundness of banks in the end. Article 35-2 through Article 35-5 of the Banking Act of Korea are conflict of interest regulations by majority shareholders modeled on the Sections 23A and 23B of the U.S. Federal Reserve Act. Section 23A places quantitative limits on affiliate transactions, forbids depository institutions from purchasing low-quality assets from their non-bank affiliates, and requires loans by banks or thrifts to their non-bank affiliates to be fully collateralized. Section 23B prohibits favortism in affiliate transactions and requires all such transactions to be conducted on arms-length basis. The Financial Modernization Act, so called the Gramm-Leach-Bliley Act of 1999, extended Sections 23A and 23B to transactions between insured banks and their financial subsidiaries. This paper aims to analyze Article 35-2 through Article 35-5 of the Banking Act of Korea in comparison with the model Act. Part Ⅱ considers briefly the historial background and content of Sections 23A and 23B of the U.S. Federal Reserve Act. Detailed analyses of Article 35-2 through Article 35-5 are discussed in Part Ⅲ through Part Ⅵ. Part Ⅶ is the conclusionary remark of this paper.

미국 보험상호회사의 비상호화

노일석 ( Il Seok Noh )
한국금융법학회|금융법연구  2권 2호, 2005 pp. 141-184 ( 총 44 pages)
11,900
초록보기
The insurance industry is, regardless of its product, is organized under two basic corporate structures. One is a stock company, the other is a mutual company. A stock insurance company is owned by its shareholders. A mutual insurance company has no shareholders and is instead owned by its policyholders. At the end of 1999, 1470 life insurance companies were in the United States. Although mutual companies account for only 106 of the 1470 life insurance companies(7% of the total), they accounted for 21% of the total insurance assets, 17% of premium income, and 36% of life insurance in force. Since 1996, some mutual life insurance companies have either completed or announced plans to reorganize into a different corporate structure. One might wonder why changing the corporate structure has become attractive to mutually owned companies in recent years. The answer to this question lies in the dynamics of the financial services industry in which the life insurance is a part. Demutualization and smaller firms`` competitive shortcomings ensure that the trend towards consolidation and convergence will continue in the coming years. Many mutual life insurance companies see themselves as significantly handicapped in competition against their larger and more diverse publicly-held stock competitors. Mutual life insurers have no authority to issue shares of capital stock and consequently have limited access to market sources of permanent equity capital. A mutual company can raise capital, primarily, only through generating and retaining earnings. There are sizeable risk-based capital requirements and other significant regulatory controls and restrictions for mutual insurance company to acquire a subsidiary company, depending on the size of the acquisition. At least five merits drive the trend toward the restructuring of the mutual life insurance companies: a need for increased access to capital and financial flexibility; enhanced corporate structure flexibility; ability to use stock as an acquisition currency; management recruitment and accountability; and tax savings. The conversion of a mutual life insurance company to a stock life insurance company is typically accomplished by one of two methods-a full demutualization or the formation of mutual life insurance holding company (MHC). Both of these options enable the mutual company to raise capital by issuing stock. In a full demutualization, the ownership interests in the mutual company are extinguished in exchange for cash or stock of the controlling entity. Thus the members receive an immediate, direct economic benefit. The controlling entity can be either the stock life insurance company into which the mutual life insurance company is converted or an existing or newly formed stock holding company that owns all of the stock of the converted mutual company. Generally, as an integral part of the process, the new stock holding company conducts an initial public offering (IPO) of its stock. Although most stock holding company is formed by the mutual company as a part of the demutualization process, there is no reason an affiliated company could not sponsor a mutual life insurance company`s demutualization and provide to the coverting mutual`s policyowners cash or stock consideration in exchange for the extinguishment of their membership interests. In an MHC reorganization the mutual insurance company restructures itself by organizing into two separate entities-an mutual holding company and a stock insurance company. The policyowners`` membership interests in the mutual life insurance company are exchanged for membership interests in the newly-formed MHC. As a result, the policyowners`` membership interests in the MHC will be similar to their membership interests in the mutual life insurance company prior to the reorganization. No consideration is distributed to the policyowners in an MHC reorganization because the membership interests are not extinguished, as they are simply transferred to th MHC. The contractual rights provided by their policies remain the obligation of the insurance company. Future owners of policies issued by the stock insurance company receive membership interests in the MHC. The stock insurance company-or an intermediate holding company that is interposed between the MHC and the stock insurer-can sell securities to the public, subject to the limitation that the MHC must own, directly or indirectly, not less than a majority of the voting stock of the insurance company. Most states have laws allowing mutual life insurance companies to convert to stock companies. These laws require approval of the plan of conversion by the company`s board of directors, policyowners, and regulators. While state demutualization may authorize several possible methods of demutualizing, the general process has become fairly standard. Once a decision is made to pursue an full demutualization, management of the mutual life insurance company prepares a plan of conversion that complies with state law. The first official act in a demutualization is the adoption of the plan of conversion by company`s board of directors. Demutualization statutes require that the plan of conversion be approved by an supermajority of the members voting. After approval by the company`s board of directors, the plan of conversion must be submitted to insurance regulator of the company`s state of domicile. For a variety of reasons, many mutual life insurance companies are reluctant to pursue a full demutualization. Following the decision to initiate an MHC reorganization, the mutual life insurance company`s management prepares a plan of reorganization that complies with state law. As in a full demutualization, the first official act in a MHC reorganization is adoption of the plan of the reorganization by the board of directors. All jurisdiction that have enacted MHC laws require the plan to be approved by an vote of eligible members. All jurisdictions require the insurance regulator of the state in which the mutual life insurance company is domiciled to approve the proposed MHC reorganization. If a MHC decides to move forward with a Phase II IPO, it will follow a process very similar to the process of a full demutualization. The restructuring of a mutual life insurance company has important consequences to its owners, who are also its customers. Our country`s insurance business law regulates mutual insurance company, but there is no mutual insurance company in our country. Therefore there is no practical need to discuss a conversion of a mutual insurance company. However, if there will exist a mutual insurance company in our country, we can adopt the debates regarding a demutualization in the United States.

미국(美國)의 보험감독법제(保險監督法制)에 관한 비교연구

장덕조 ( Deok Jo Jang )
한국금융법학회|금융법연구  2권 2호, 2005 pp. 187-204 ( 총 18 pages)
5,800
초록보기
In this Paper, I studied to enunciate the insurance regulatory system of U.S.A., and to compare that of Korea. The debate over the modernization of the regulation of the insurance industry intensified over the past year, most notably a developing proposal in the U.S. House of Representatives to enact federal standards for the regulation of various aspects of the business of insurance. While major reform was not achieved, the stage seems to be set for important federal legislation within the next year that will mandate changes in the state-based regulatory system.
7,400
초록보기
After years of serious debate and discussion over the best way to regulate the so-called Collective Investment Scheme of Union Type (or "Union Type Funds"), both the investment community and lawmakers of Japan seem to agree that the upcoming enactment of the Financial Instruments and Exchange Law (or the "New Law") must take into account the reality that Union Type Funds are "atypical" in nature, meaning that they are much different in their investment format from so-called standardized funds. It is true that among the legal and conceptual details of the legislation that they seem to be deciding on can be found similarities with some of the investment laws of Korea such as the Indirect Investment Asset Management Business Act, which has already gone into effect, and the so-called Capital Market Integration Law, which is currently in preparation for enactment. With respect to the legal and regulatory approaches taken by the two countries for the abovedescribed laws, however, a number of differences can also be identified. Distinctive features of the approaches taken by the investment community and lawmakers, especially in the New Law can be summarized as follows: 1. The New Law by definition does not put "partnership companies under commercial law" into the category of Union Type Funds. 2. In defining Union Type Funds, the New Law seeks "conflict-free consistency" with other related laws by way of eliminating and/or preventing the possibility of causing unwanted conflicts (of interest) among different laws and regulations. To do that, lawmakers in Japan have even considered repealing the Corporation Law, if deemed necessary. 3. With respect to the issue of regulating the establishment of funds, including Union Type Funds, the New Law is more likely to adopt a registration system-base approach rather than a reporting system. 4. To avoid conflicts of interest as much as possible and define the responsibilities or areas of responsibility of the fund trustees as clearly as possible, the basic and categorical duties for those trustees are to be specified in the New Law; however, the New Law will leave room for specific details of those duties to be able dealt with through the applicable clause or clauses of individual contracts. 5. The New Law limits the qualifications for fund managers to only a corporate person, which means that any natural person is not to be allowed legally to manage a certain Union Type Fund. 6. Under the New Law an expanded and thus more comprehensive concept of marketing and/or solicitation will be applied to such activities committed by fund managers. 7. There is a possibility that the New Law, unlike the Securities Transaction Law currently in effect, may exclude the so-called "public notice (or public notification) clause" since both market participants and lawmakers agree that Union Type Funds can be regulated effectively without it. At this point in time when market participants and lawmakers in Korea are eager to establish successfully the so-called Capital Market Integration Law (or the Law over Finance and Investment Service Industries and Capital Markets as it is tentatively called), examining and taking into full consideration the differences and distinctive features of the approaches taken by Japan may provide useful guidance, especially in terms of minimizing potential issues and/or problems that may occur after its legislation.
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