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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 : 3권 1호 (2006)

발간사(發刊辭)

정찬형
한국금융법학회|금융법연구  3권 1호, 2006 pp. 3-4 ( 총 2 pages)
1,000
키워드보기
초록보기

무권한 전자금융거래에서 금융기관의 책임

정경영 ( Gyung Young Jung )
한국금융법학회|금융법연구  3권 1호, 2006 pp. 3-48 ( 총 46 pages)
12,100
초록보기
In case of financial transaction without authorization, the liability of financial institutes which executed the transaction is a hot issue. According to the Electronic Financial Transaction Act(EFTA) which was promulgated last April, financial Institutes and electronic financial service provider shall be liable to the user of the services for damages due to using the forged access tool or some accidents during transmission of payment order. When the user of electronic financial service and electronic financial service provider(including financial institutes) have acted in good faith and without negligence in electronic financial transaction, EFTA charges the liability for the loss on electronic financial service provider in principle, which, I think, contradicts to the general rule of negligence liability and Civil Code. 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(§688 of Civil Code). As the contract between the user of electronic financial service and electronic financial service provider is construed as mandate contract and the latter is mandatory, in case that the latter is without any negligence on his part, damages through the management of the entrusted affairs like electronic financial transactions should be charged on the mandator, the user of electronic financial service. Though EFTA can change the rule of civil code from the view point of consumer protection, the allotment of liability to both parties is necessary, like EFTA(Electronic Fund Transfer Act) or UCC 4A of US.

지급결제제도의 결제완결성

박구용 ( Gu Yong Park )
한국금융법학회|금융법연구  3권 1호, 2006 pp. 51-80 ( 총 30 pages)
7,000
초록보기
In accordance with Act on Bankruptcy and Rehabilitation of Debtors (entry into effect on April 1, 2006, hereinafter referred to as "Unified Insolvency Law"), the Bank of Korea decided to designate 5 payment and settlement systems, including BOK-Wire, the Interbank CD/ATM System, the Interbank Funds Transfer System, the Electronic Banking System, and the CLS System, as the payment and settlement system to be guaranteed settlement finality effective from August 21, 2006. Settlement finality means that payments made through the systems designated as above upon orders of the payment system participants are unconditionally binding and irrevocable under operational rules of the payment and settlement system, notwithstanding any other circumstances or laws. This legally and practically rules out the application of clauses in Unified Insolvency Law, which hampers settlement finality, such as avoidance power of trustees in bankruptcy and regulations on presumption, in order to ensure finality of individual transfer orders (payment) and interbank net settlement. Guarantee of settlement finality has been taken for granted in the past and there have not been any serious problems involving a lack of relevant legal framework. Recently, however, the EU and other advanced countries established or amended relevant laws to guarantee settlement finality of payment and settlement systems, as there are more frequent cross-border financial transactions, and international organizations, such as the Bank of International Settlements(BIS), recommended establishment of legal grounds for guaranteeing settlement finality. In recognition of such a global trend, the Bank of Korea made a request to the Government and the National Assembly during the legislation process of the Unified Insolvency Law to set up legal basis for guaranteeing settlement finality of payment and settlement systems. As a result, the Unified Insolvency Law includes the special provisions(Articles 120 and 336) which guarantee the validity of payment orders or settlements related to these orders made through the payment and settlement systems designated by the Governor of the Bank of Korea in consultation with the Minister of Finance and Economy. As settlement finality of the five payment and settlement systems is legally guaranteed, it ensures normal operation of these systems as well as stability of financial market even in case of bankruptcy of financial institutions. Moreover the legal framework complying with the global standards is expected to contribute significantly to the advancement of payment and settlement systems and to globalization of the financial market.

지급결제서비스의 주체는 누구인가?

도제문 ( Jae Moon Do )
한국금융법학회|금융법연구  3권 1호, 2006 pp. 83-122 ( 총 40 pages)
8,000
초록보기
Although the payment system has hitherto been recognized as an exclusive domain of banking companies, the government reportedly plans to help the securities industry to break down the wall of this domain for the purpose of promoting the level of customer service. The entry of the securities industry into the payment system or permission to payment function for security account is unprecedented in the world. The problem of payment system is not subject to public regulation by the policy or legislative powers. The payment system should be designed by all participants and administrated by private autonomy. Entry of securities industry into the payment system can be resolved by contractual agreement. But this subject arouses a few problems as follows. The understanding that banking companies are exclusively in charge of the payment system is derived from the fact that banks are the unique institutions in charge of deposit accounts. The government lays various kinds of prudential regulation against banks to protect deposited currency and to reach the goal of financial stability. Typical among them is the regulation on the scope of the banking business. So to grant permission for the securities industry to enter into the payments system while restricting access to banking companies in business area is unfair. The principal is usually not guaranteed in securities accounts. When securities accounts are used as the means for payment, that can bring about system risk. That is why banking companies are exclusively in charge of the payment system. Should the entry of the securities industry into the payment system be permitted in spite of these reasons, the following conditions should be resolved. When securities accounts are used as payment transaction accounts, they should be considered as bank accounts and the institution dealing with these accounts should be supervised as banks. The payment system is subject to oversight from the central bank. The main purpose is to prevent and resolve payment risk to maintain the stability and efficiency of payment system. Accordingly, when the securities industry is permitted to participate in the payment system and securities accounts are considered to be bank accounts, the securities industry should be subjected to oversight from the central bank. The topic of universal banking needs to be discussed in more depth. Because the cause of restriction in business area of banking industry can be recognized as the price of exclusive charge of bank accounts and payment system.

「자본시장과 금융투자업에 관한 법률」제정안의 주요 내용 및 의견수렴 경과

최원진 ( Won Jin Choi )
한국금융법학회|금융법연구  3권 1호, 2006 pp. 127-156 ( 총 30 pages)
7,000
초록보기
In June 2006, the government made a pre-announcement of the Financial Investment Services and Capital Markets Act. This act intends to increase intermediary functions of the capital market, strengthen investor protection, and promote competition and financial innovation of the finance investment industry. In pursuit of the purpose, the legislation has four basic principles. First, positive list system will be abolished and a comprehensive system will be introduced. This system will improve market efficiency and give more flexibility to the capital market. In the current positive list system, only the enumerated financial products can be devised and traded in the market. On the other hand, the comprehensive system allows all financial products, except for deposit and insurance products, to be developed and traded. This system introduces the concept of ``contract for differences`from the FSMA (Financial Services and Markets Act) of the United Kingdom, and the concept of ``investment contract`` from the Securities Act of the United States of America. Second, a functional regulation system will be introduced. This system applies same regulations for financial functions of same nature. Financial services will be reclassified into 6 financial investment services of dealing service, arranging service, collective investment service, discretionary investment advisory service, non-discretionary investment advisory service, and trust service, and regulations will be placed by service functions. Financial products and investors will also be categorized, and regulations will be applied based on its category. Financial products will be classified into securities, exchange traded derivatives, and otc derivatives, and investors will be divided into non-professional investor and professional investor. This measure will eliminate regulatory arbitrage and deficiencies of investor protection. Third, investor protection will be intensified through advanced investor protection vehicles. An internal control system, which includes product guidance, suitability principle, regulations on unsolicited calls, and conflict of interest prevention, will be introduced. Fourth, barriers among 6 financial investment services in the capital market will be removed. Companies will be able to cover all financial investment services. This removal process is expected to bring big size financial investment companies in the Korean capital market. This act is currently in the screening process under the Ministry of Government Legislation, and will be submitted to the National Assembly around the end of 2006. This act will take effect after one year and a half from its official announcement.

자본시장법상의 금융투자상품

이형기 ( Hyeong Ki Lee )
한국금융법학회|금융법연구  3권 1호, 2006 pp. 159-180 ( 총 22 pages)
6,200
초록보기
The financial investment instrument is a fundamental concept in determining the scope of the Financial Investment Services and Capital Market Act . A right or security that falls under the Act has the following legal effect: first, except for some exempt securities, it is subject to issuance and distribution disclosure obligations; second, depending on the distribution status of the financial investment instrument, it is subject to regulations on unfair trading, such as insider trading and price manipulation; third, the business of trading or underwriting a financial investment instrument is subject to the Act. How to define a financial investment instrument depends on the particular legislative objectives. The Act, contrary to the current Securities and Exchange Act, defines securities in an abstract and comprehensive way. Moving away from the institutional regulation, this enables functional regulation, which should work to strengthen investor protection. This paper outlines, from the perspective of regulatory usefulness and legal stability in the context of a comprehensive definition of financial investment instruments, ways to clarify legal vagueness. It also points out issues and possible rectifications on the scope of instruments, taking into account existing regulations on financial instruments in the U.S., the U.K., and Japan.

자본시장통합법 제정에 따른 금융권역별 영향 및 금융감독 방향

오용석 ( Yong Suk Oh )
한국금융법학회|금융법연구  3권 1호, 2006 pp. 183-200 ( 총 18 pages)
5,800
초록보기
For leading a financial Big Bang in the capital market by stimulating financial innovation and competition, the Korean government is working on the establishment of Capital Market and Financial Investment Services Act which will consolidate the existing capital market related acts. One of the main points of this act is to regard financial products with possibilities of losing a part of the principal as ``financial investment products``. Another main point is that a financial investment company is allowed to manage all six financial investment businesses(investment transactions, investment intermediation, collective investments, investment commitments, investment consulting and trust businesses). Also the Act extends the scope of investment business. For example, the Act allows financial investment companies to join the micro-settlement system of Korea Financial Telecommunications & Clearings Institute and this will greatly improve the convenience of the securities account, which until now was bound to provide only basic services. Finally the Act is upgrade the investor protection mechanism. For example, financial investment companies are required to receive clients`` signatures which confirm that clients are well informed of the details of the investment products when they sell investment products. Though the scope of this legislation is yet limited to the capital market and the securities industry, requests will be growing that banking and insurance industries should adopt the same regulation system. On the other hand, the business scope extension in securities industry is likely to causes more competitions among the industries and consumers in banking and insurance industries may claim more strict consumer protections in their areas. Because nowadays many securities companies are belong to financial groups, all the financial companies in a financial group will enjoy synergy effects by turning a securities company into a financial investment company. One of the worries regarding the Act is related with allowing financial investment companies to join the micro-settlement system. In spite of all the carefully designed systemsafety- purposed devices, overall risks of micro-settlement system due to the entrance of the securities companies are estimated to be increased slightly. For the banking industry, this legislation will be the chance to diversify banks`` income structures and increase their customers. However, the trust business in bank can be shrunken as the financial investment companies can run the trust business as a main business. For the insurance industry, the Act will help to improve the asset managing environment and escalate the possibility of joining the micro-settlement system, but competitions will also be growing because some business area can be overlapped. Clearly the securities industry will enjoy many benefits from the Act. First of all, the role and scale of the capital market will be enlarged and capital market related financial institutions can be large enough to compete with international investment banks such as Merrill Lynch through the capital increase and M&As. Competitiveness of investment products will grow and business grounds for the financial investment companies will be strengthened by offering comprehensive financial services. However, there is a good possibility that foreign investment companies can erode the new profitable market with advanced financial technique, skilled experts and sufficient capitals. For minimizing the adverse effects and maximizing the positive effects, the methods of financial supervision should be adjusted. The confusion caused from the co-existence of institutional regulations(banking and insurance industry sectors) and functional regulations (securities industry sector) can be eliminated by changing the supervisory organization in the way that institutional regulations are supplemented by functional regulations. Also the balances between the securities industry supervision and banking/insurance supervision should be considered to get rid of possible discriminations caused by different regulation systems.

자본시장통합법상 금융투자회사의 지급결제서비스 제공과 관련한 주요 쟁점

김유철 ( Yu Chul Kim ) , 노영래 ( Young Nae Roh )
한국금융법학회|금융법연구  3권 1호, 2006 pp. 203-239 ( 총 37 pages)
7,700
초록보기
The Financial Investment Services and Capital Market Act is aimed at promoting financial innovation and competition through advanced regulatory reform to eventually form a competitive capital market. It also contains an article allowing financial investment firms to provide payment and settlement services such as settlement, remittance and deposit and withdrawal on demand through their customer accounts. Specifically, this sets up a legal basis for the firms to join the retail payment systems through the firms`representative financial institution and an agency bank. Now securities firms provide their customers with payment services of a similar level to those banks provide to their own customers by entering into contracts with banks about virtual banking account. But this method has involved not only some restrictions on available service hours and coverage but also conflicts over service charges between parties to the contract. In order to reduce those inconvenience, the draft legislation would allow financial investment firms to participate in retail payment systems. But the proposal poses a number of problems. Above all, it would undermine the current principle of preventing infringement of other financial institutions`turfs among banks, securities firms and insurance firms because it would actually enable financial investment firms to handle demand deposits. Securities firms`direct provision of payment services to their customers is not expected to achieve its desired goals such as fostering competitiveness of financial investment firms, reducing the service charges levied on financial investment firms and attracting inflows of cash balances held by household, while it might be confidently expected to increase the service charges imposed on customers. In addition, it will cost Korea Securities Finance Corporation(KSFC) and individual securities firms a large amount of money to develop and maintain new electronic devices and in-house systems. Unnecessary social costs will occur as a result of the rising settlement risk to the retail payment systems. Accordingly, the implications suggested by this paper are as follows. First, thorough reviews of the principles which restrict corporate firms`holding of bank stocks above a certain ceiling and prevent infringement of other financial institutions`turfs among banks, securities firms and insurance firms should be conducted before discussing the issue officially. Second, decisions should be made considering comprehensively such factors as the risk management system and the settlement practices of financial investment firms because it is hard to say whether having financial investment firms deal with payment services is directly related to improving competitiveness.
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