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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 : 4권 1호 (2007)

발간사(發刊辭)

정찬형
한국금융법학회|금융법연구  4권 1호, 2007 pp. 3-4 ( 총 2 pages)
1,000
키워드보기
초록보기

수익증권 환매 관련 대법원판결에 관한 소고

박삼철 ( Sam Cheol Park )
한국금융법학회|금융법연구  4권 1호, 2007 pp. 3-20 ( 총 18 pages)
5,800
초록보기
The distributors` redemption duty may well find its reason in the investment trust deed established with reference to the ex-Securities Investment Trust Business Law (the old law). Distributors had included redemption duty of its own property in the investment trust deed by the mutual consent with management company and trustee company. Otherwise distributors had been only the sales agency which had no redemption duty of its own property with reference to the old law. It has to be considered for making an effort to get the one day redemption system function well with the book valuation. Allowing that the distributors` redemption duty of its own property to be included in the investment trust deed, it is still valid in the investment trust act because its redemption duty would be not compulsory in an unusual condition such as a large number of claims for the repurchase. In a word, the distributors` redemption duty of its own property with reference to the old law has to be regarded as based on the investment trust deed. It is difficulty to find the distributors` redemption duty pursuant to the investment trust deed such like this contrary to the investment trust act. Because in case of a large number of claims for redemption, the partial termination of the investment trust will be expected, and in case of the inability of disposition or valuation of fund assets, suspension of redemption will be expected.

자본시장통합법상(資本市場統合法上) 자금수탁자(資金受託者) 의무의 전면적인 도입 필요성

김용재 ( Yong Jae Kim )
한국금융법학회|금융법연구  4권 1호, 2007 pp. 23-51 ( 총 29 pages)
6,900
초록보기
The National Assembly of Korea has passed the Act on the Capital Market and Investment Banking (hereinafter, the Act) on July 3rd, 2007. The Act aims at fully consolidating prior securities-related Acts, such as the Securities Exchange Act, the Futures Trading Act, the Collective Investment Scheme Act, the Trust Business Act, the Merchant Banking Act and the Money Brokerage Act. The author strongly supports the Act and expects some prospective investment bankers similar to the Goldman Sachs. The Act divides the traditional securities-related business to six sectors, such as dealing, brokerage, asset management, investment adviser, wrap and trust. If an investment banker is allowed to conduct all of these businesses, it may enjoy a lot of advantages subject to the either scale or scope economy, thereby increasing the overall welfare of financial investors. However, financial investors may encounter some disadvantages, in particular conflict of interest problems, which frequently occur between financial firms and financial investors or among financial investors themselves. Of course, the conflict of interest problems are not new ones created by the Act, because most investors have also been exposed to same problems under the current securities-related Acts. However, the Act should contain wise solutions to deal with these problems. Otherwise, the Act may face several critiques because these problems have not been seriously tested during the legislation procedures. The author feels a kind of duty to supplement the Act, thereby protecting financial consumers and strengthening the competitiveness of the financial industry in the end. The author mainly suggest one of the most important reforms in order to solve the traditional conflict of interest problems, that is the introduction of the fiduciary duty and its details to the Act. Part two analyses the current scheme of the conflict of interest regulations and develops main problems. After considering the basic concept and scopes of the fiduciary duty in general, part three applies the fiduciary duty to real conflict of interest cases in the U.S. and the E.U. Part four deals with some remarkable provisions under the Act and suggests what should be done in the near future. Part five is the conclusion part of this paper.

보증보험의 보증성과 보험성에 관한 연구

정찬형 ( Chan Hyung Chung )
한국금융법학회|금융법연구  4권 1호, 2007 pp. 55-126 ( 총 72 pages)
14,700
초록보기
Whether the legal nature of guaranty insurance is guaranty or insurance, is one of the most controversial issues in Korea Insurance Law. There is no different view in respect of that the guaranty insurance partakes of the nature both of guaranty and insurance. But there is a wide disagreement over which one of two natures prevails. In my opinion, the nature of insurance has priority in the guaranty insurance. Because the parties of guaranty insurance contract are insurer and insured (debtor), while the parties of guaranty contract are guarantor and creditor. Even though the guaranty insurance substantially has the nature of insurance, it has also partly the nature of guaranty. Therefore, some articles of insurance law cannot be applied to guaranty insurance cases, while the articles of guaranty debt in the Civil Code should be applied to those cases. 2007 amendment draft of Korean Commercial Code (Insurance Law) newly stipulated the articles of guaranty insurance in the Korean Commercial Code reflecting the nature both of guaranty and insurance in the guaranty insurance.

문책경고제도의 운영에 대한 고찰

최동준 ( Dong Jun Choi )
한국금융법학회|금융법연구  4권 1호, 2007 pp. 129-152 ( 총 24 pages)
6,400
초록보기
The Disciplinary Warning is one of the supervisory sanctions against officers of the financial institution. It is stipulated in the sanction`s regulation by the Financial Supervisory Commission (FSC). Its effect is restricting the concerned officer from being appointed as an officer during certain period as set forth in each regulation on supervision of relevant financial institutions. In the Banking Act, the FSC may have the Financial Supervisory Service (FSS) Governor take an appropriate measure such as issuing a warning where any officer of a financial institution intentionally violates this Act or any rules, orders, or instructions under this Act, or performs an act which seriously damages the sound operation of the financial institution. And the specific matters on the qualifications for officers of financial institutions shall be determined by the FSC. Here arise problems whether the FSC`s sanction`s regulation can stipulate the Disciplinary Warning in spite the Banking Act describes only a Warning and it is right or authorized for the Disciplinary Warning stipulated in the regulation to restrict the concerned officer from being appointed as an officer during certain period. This paper discusses the legal character and legal basis of the Disciplinary Warning in detail, suggest the some items of the concerned Financial Laws to be amended.

감독자에 대한 제재의 법 이론

서문식 ( Mun Sik Seo )
한국금융법학회|금융법연구  4권 1호, 2007 pp. 155-179 ( 총 25 pages)
6,500
초록보기
Financial Supervisory Commission (FSA) and Financial Supervisory Service (FSS) of Korea have taken enforcement actions against employee, employer or financial companies who violate financial laws of Korea. This enforcement actions, such as suspension order, removal order, civil money penalty etc. apply not only to the offender but also to the supervisor of the offender. About 30 Acts regarding financial business regulation in Korea, however, have no statement at all about the liability of supervisor even though there are lots of legal issues that should be decided when FSA, FSS actually takes enforcement measures against supervisor. Until now, the actions have been taken according to the precedents without through studying on the liability of supervisor. This paper is to study theoretical base of the liability of supervisor and to propose the proper prima facie cases (i.e., elements) on the liability of supervisor. Liability of supervisor can be subdivided into civil, penal, and administrative liability. Administrative liability means the enforcement measures taken by FSA, FSS. The research conducted on all kind of supervisor liability in Korea and America found 5 types of supervisor liabilities; torts vicarious liability in Korea, torts vicarious liability in America, controlling person liability in Security Act of 1933, Securities Exchange Act of 1934 in America, liability based on failure to supervise in Securities Exchange Act of 1934 in America, and Responsible Corporate Officer doctrine in America. At first, it is studied whether each liability is based on personal culpability or vicarious liability. This distinction is very important in that most issues in supervisor liability are originated from this distinction. The research found that all vicarious liability is not the same, thus some vicarious liability can be exempted by some defenses while others cannot. Pure vicarious liability apply to torts vicarious liability in America, Responsible Corporate Officer doctrine. Defense attached vicarious liability apply to torts vicarious liability in Korea, controlling person liability in Security Act of 1933, Securities Exchange Act of 1934. Personal culpability apply to liability based on failure to supervise in Securities Exchange Act of 1934. Next, prima facie cases of each liability are analyzed. Through this I proposed "controlling person liability in Security Act of 1933" as a model for Korean financial supervisory authorities to execute enforcement actions against supervisor of offenders. This liability is based on personal culpability so that it can avoid dispute concerning constitutionality. In addition, the prima facie cases of this liability is so similar to current practice of FSA, FSS that they, I think, can be harmonized with current practice without difficulty.

해외상장과 유가증권예탁결제제도

최경렬 ( K. R. Choi )
한국금융법학회|금융법연구  4권 1호, 2007 pp. 181-202 ( 총 22 pages)
6,200
초록보기
More and more attention is being paid to foreign market listing as crossborder securities transactions are considerably increasing with globalization. Foreign market listing can be done in two forms: depositary receipts (DR) or share certificates. Corporations can issue and list DR overseas for the shares they issue in the domestic market or list their share certificates directly on overseas exchanges. In the meantime, the securities deposit and settlement system, which was introduced to facilitate securities transactions, also plays an important role in overseas listing. If a country`s securities deposit and settlement system is linked with that of another country through CSD (Central Securities Depository) linkage, share-listing on overseas exchanges is possible, even in the case where shares are issued in the domestic market and deposited with the domestic CSD. In this case, entitlement processing for foreign investors could be taken care of through CSD linkage. But, custody and corporate action services have been provided by global custodians, who started their services even before the establishment of CSDs. Therefore, it is true that this new approach of CSD linkage has many difficulties to overcome. If CSD linkage is not easy to accomplish, which is true in current situation, issuing and listing share certificates overseas could be an option, but not a desirable one. Issuing share certificates in a foreign country could cause a conflict between the legal system of the foreign country and that of the country where the issuer is resided, and arise many problems concerning corporate action. All of the problems could be solved with overseas DR listing. DR is foreign securities issued overseas as the receipts of the shares issued and deposited in the domestic market. Therefore, a possible conflict of the legal systems is rare, and corporate action can be processed without difficulties by taking advantage of the DR custodian network with the local custodian for shares. In addition, DR enables timely arbitrage, which is difficult in the case of overseas listing in the form of share certificates. Corporations, which co-list their shares on multiple exchanges, will have to make every effort to take necessary steps so that their overseas investors can conveniently exercise their rights, along with their effort to raise their fundamental value with sound financial structure and bright outlook. And DR could be used as one of the desirable means for them to reach the goal.
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