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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 2호 (2007)

발간사(發刊辭)

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

금융투자상품과 투자자 보호

유석호 ( Seok Ho Yoo )
한국금융법학회|금융법연구  4권 2호, 2007 pp. 3-27 ( 총 25 pages)
6,500
초록보기
"The Capital Market and Financial Investment Service Act" (hereinafter "the Act") was enacted as of 3 July 2007, which adopts an "all-inclusive system" for defining investment instrument in order to strengthen the competitiveness of the capital markets industry and to protect investors. Moreover, the Act sets down rules and regulations for protecting investors, such as "know-your-customer rule," "the principle of suitability," etc. and a series of "Chinese Wall." On the one hand, most of these newly adopted systems look desirable, and they are designed to better protect investors and enhance the competitiveness of the industry. On the other, the Act has problems with its application as follows. First, since the definition of investment instrument has very abstract wordings, it would cause unnecessary costs to the investors and industry. For instances, the concepts, such as "the possibility of loss of the principal," "the obligation of additional payment," etc. would make the investors and the industry put more money in the pockets of lawyers to figure out what they actually mean. Second, newly adopted regulation on investment solicitation seems to have many difficulties especially in its practical application. In a word, while the new system is very ideal in theory, its applicability stays away from the reality. Since the supervisory authorities seem to have been stuck to only improving old regulations, it would ignore the reality and capacity of the industry. Thus, I am tempted to expect that the industry would pick customers for its own interest, trying to get around the new regulation for investor protection. Finally, the Act puts emphasis on the investment companies` duty of compliance, which is to solve the problems of conflicts of interests as the prohibition of multi-business in a house is put to an end. The industry, however, seems not to be aware of the importance of compliance. It appears that the supervisory authorities don`t have intentions for making regulations or guidelines on this point. I shall claim that the industry can be more profitable through proper compliance in far-sighted strategies. In short, although there are many desirable aspects in the Act, many problems have yet to be solved. Luckily enough, we can have the chance to get some of these problems fixed or corrected by the sub-provisions or administrative regulations before the Act takes effect on 4 Feb. 2009. In this regard, I hope that this review will be helpful for the government and the industry when they try to put efforts into making the more applicable and complete Act.

금융상품과 소비자 보호 -보험상품을 중심으로-

이현열 ( Hyun Yul Yi )
한국금융법학회|금융법연구  4권 2호, 2007 pp. 29-62 ( 총 34 pages)
7,400
초록보기
Even though in insurance business law two goals of insurance company which are financial soundness of insurance company and consumer protection were commonly understood as an opposite concepts, those could be re-consider as head and tail of a coin. Because the supervisor would take one of them according to the entire policy environment and this is well reflected in insurance business law, the relationship of these two goals within the insurance product was studied in this paper. First, as the general insurance products system including the elements of insurance product such as terms and conditions, business manuals, premium and reserve calculation manual was studied. The effect of the Financial Investment Services and Capital Markets Act to the insurance business, especially about the classification between insurance product and derivative product was researched. Second, the attribute of insurance as a group was studied. The assertion that the profit of insurance group should be superior to the profit of individual insurance consumers is not reasonable for it could be manipulated to transfer the loss of insurance company to the insurance consumers. So non-guaranteed should be executed on legal foundation. Third, on the issue of the conflict between the insurance law and the competition law regarding unfair co-practice of insurance companies, the possibility of regulation overlapping can cause the economical and social cost. So in order to reduce the cost, adequate arrangement should be taken in the sense of the uniqueness of insurance industry. In addition to this study, the method for increasing the solvency of insurance company to protect the insurance consumer s rights to give the benefit should be studied.

금융환경 변화와 펀드의 이해 -자본시장통합법에 의한 집합투자기구를 포함하여-

서현우 ( Hyun Woo Suh )
한국금융법학회|금융법연구  4권 2호, 2007 pp. 65-114 ( 총 50 pages)
12,500
초록보기
This essay "Changing Environment in Financial Market and Understanding of Fund" illustrates an overview of changing environment of financial market and describes general contents of fund which is in the center of recently shifting financial market. First, regarding changing environment in financial market, the essay describes current status and changing environment of financial industry, financial business law and financial products and services. That is because in order to understand asset management business and the industry`s representative financial vehicle the "fund," which is regulated by "Indirect Investment Asset Management Business Act" preliminary comprehension of financial business and financial products and services are required. It also adds the relationship between asset management business and investment bank business, the industries that are growing rapidly worldwide under the solid support of government and financial institutions. This paper also gives an overview of globally circulating variety of funds and their present condition and status, then moves onto details of Korean fund market. In order to better understand different category of funds, the paper gives an overview of various funds categorized under current "Indirect Investment Asset Management Business Act" and goes into details of financial investment products and collective investment vehicle regulated by "Capital Market and Financial Investment Business Act(Capital Market Consolidation Act)" which is set to be launched soon. The paper also adds explanation of Private Equity Fund(PEF) and Hedge Fund in pursuit of searching for efficient development model suitable in Korean PEF market and offers positive direction to soon to be implemented Hedge Fund. Lastly, it examines the effect and impact of "Capital Market and Financial Investment Business Act" to the market once it is implemented and offers advice to further improve Korean fund market.

2007년 확정한 정부의 상법(보험편) 개정안에 대한 의견

정찬형 ( Chan Hyung Chung )
한국금융법학회|금융법연구  4권 2호, 2007 pp. 119-162 ( 총 44 pages)
11,900
초록보기
1. That the Draft stipulates newly the principle of the utmost good faith in all insurance contracts (Art. 638 Para. 2), is very reasonable. 2. The newly regulated (by the Draft) powers of insurance agent, insurance broker or insurance salesman (Art. 646-2) are required to be stipulated in more detail and correctly. 3. The newly regulated Articles saying that the insurance contract by fraud is invalid (Art. 655-2) and the insurer does not have any obligation against the claim of the amount insured by fraud or forged documents and so on (Art. 657-2), are appropriate. 4. That the Draft extends extinctive prescription period of the claim of the amount insured to 3 years from 2 years and extends extinctive prescription period of the claim of premium to 2 years from 1 year (Art. 662), is proper. 5. That the Draft regulates newly the effect of default of duty to notify double insurance (Art. 672-2 Para. 2), is not necessary. It can be stipulated in Art. 651-2 together. 6. That the Draft regulates newly the effect of default of duty to notify the assignment of the subject-matter of insurance (Art. 679 Para. 2·Para. 3), is not necessary. 7. The present Article 680 saying that the insurer always shall be liable to pay the necessary or advantageous expenses to prevent a loss, should be kept up. Therefore, the Draft Article 680 Para. 2 and Para. 3 which the Draft changes the above present provision, should be deleted. 8. That the Draft restricts the subrogation right of insurer to the family members of the person effecting the insurance or the insured (Art. 682 Para. 2), is reasonable. 9. That the Draft stipulates newly the guaranty insurance (Art. 726-5, 726-6, 726-7), is proper. 10. That the Draft regulates newly the amount insured to be paid separately in all contracts of person insurance (Art. 727 Para. 2), is proper. But the word "as an annuity"should be inserted in Art. 727 Para. 2 by my opinion. 11. That the Draft deletes Art. 735 (Endowment Insurance) and Art. 735-2 (Annuity Insurance), is proper. 12. That the Draft permits a feeble-minded person to effect the insurance and to consent as the insured (Art. 732), is improper. 13. That the Draft regulates newly the reasons for which the life (death) insurer is relieved of liability in detail (Art. 732-2), is appropriate. 14. That the Draft regulates newly the effect of default of duty to notify any other life insurance(s) (Art. 732-3 Para. 2), is not necessary. It can be stipulated in Art. 651-2 together. 15. The newly regulated (by the Draft) provision saying that a half of the amount insured of life (death) insurance is exempted from attachment (Art. 734-2), is proper. 16. The newly regulated provision (Art. 735-3 Para. 3) saying that the written consent of the insured should be required if the person effecting the insurance orders any other person except the insured as beneficiary in group insurance, is improper. 17. The newly regulated provision saying that the policy conditions concerning exemption of liability of the insurer in case of no license or drunken drive and so on are valid (Art. 737-2), is proper. 18. The newly regulated provision saying that the provisions concerning property insurance shall apply mutatis mutandis to personal accident insurance which has the character of property insurance (Art. 739 Para. 2), is very proper. 19. That the Draft regulates newly provisions concerning sickness insurance (Art. 739-2, 739-3, 739-4), is very proper.

일본의 개인과징금제도에 관한 소고 -2004년 도입된 증권거래법의 관련 규정을 중심으로-

김용재 ( Yong Jae Kim )
한국금융법학회|금융법연구  4권 2호, 2007 pp. 167-194 ( 총 28 pages)
6,800
초록보기
Japan introduced the civil money penalty system against individuals to the Securities Exchange Act on June of 2004, which was fundamentally modeled on the U.S. Financial Law. The system was effective on April 1 of 2005. Individuals who have been in violation of the most important provisions under the Securities Exchange Act, in particular ones who are in the course of manipulation, insider trading, or non-disclosure of material information, may be subject to severe civil money penalties besides forfeitures, seizures, and criminal penalties. The Japanese Congress overcame lots of hurdles when introducing the new system, such as the most serious issue like a double jeopardy or a due process concern. This paper aims to the introduction of a similar system in Korea, thereby remarkably suppressing securities-related crimes. The japanese reform in the field of the capital market has been applauded and evaluated as a challenging trial and the best practice by other circles. For instance, based on the Securities Act and regulations, the Fair Trading Commission in Japan has studied and pursued more sophisticated and refined civil money system against individuals who are lurking behind corporations or corporate groups but are initiating illegal activities and practices for the anti-competition and the concentration of their economic powers in a relevant market. Constitutional issues including a double jeopardy problem are also the most interesting topic when researching this system. All of these issues will be deeply discussed in the Japanese Context.
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