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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 : 5권 2호 (2008)

발간사(發刊辭)

정찬형
한국금융법학회|금융법연구  5권 2호, 2008 pp. 3-4 ( 총 2 pages)
1,000
키워드보기
초록보기

은행규제의 바람직한 모습 -미국에서의 은산분리정책(銀産分離政策)을 모델로 하여-

김용재 ( Yong Jae Kim )
한국금융법학회|금융법연구  5권 2호, 2008 pp. 3-35 ( 총 33 pages)
7,300
초록보기
The Financial Supervisory Commission (FSC) recently announced that it would amend the Commercial Banking Act of Korea in order to allow korean style conglomerates (so called chaebols) to get bank ownership in the near future. Under the current Act, chaebols has been limited to hold their maximum shareholding to 4% of total outstanding shares with voting rights. This kind of ownership regulation beforehand is anachronistic to the recent deregulation movement in the financial world. To make matters worse, chaebols are able to hold secretly majority shares of commercial banks so long as these holdings are inferior to qualified foreign shareholders provided that their holdings did not exceed those of foreigners. For that reason, some scholars have criticized that the anti-holding regulation against chaebols should be abolished immediately since it has no reasonable justification. However, the author believes that the current amendment is not adequate nor timely in considering the serious financial difficulties worldwide caused by the insolvency of Lehman Brothers``. In addition, people have an enormous doubt about chaebols`` real intention why they have pursued to get bank ownership in Korea. Last year, one whistle-blower who was one of the highest in-house lawyer and retired from the Samsung Group confessed that the owner of the Samsung Group had maintained lots of borrowed accounts to conceal dirty money at its financial subsidiaries. Due to this scandal, people are very afraid that if chaebols are allowed to own a bank they will surely use it either as a private funding source or as a illegal vehicle for a tax evasion and a money laundering and so forth. Thus, most korean people do not support this kind of reform at this time, and strongly believe that banking and commerce should be separated for the time being. Part II deals with the U.S. policy of separating banking and commerce. In the U.S., a highly publicized battle was triggered from mid-2005 through mid-2007 when Wal-Mart, the world`s largest retailer, applied for permission to establish Wal-Mart Bank, A new Utah-chartered industrial banks. In particular, three significant issues were raised including, ① whether commercial ownership of industrial banks is contrary to the U.S. policy of separating banking and commerce, ② whether commercial ownership of industrial banks creates serious risks for the U.S. financial system and the broader economy, ③ whether the Federal Deposit Insurance Corporation (FDIC) has adequate supervisory powers to control such risks, despite the FDIC`s lack of consolidated supervisory authority over the parent companies of industrial banks. Part III analyzes deeply the current amendment in Korea comparing the 2008 policy statement of the Federal Reserve Board in the U.S. This analysis shows clearly that the FSC made serious errors in reforming the Banking Act due to its excessive favoritism toward chaebols. That is, the FSC mis-translated the 2008 policy statement and distorted the truth itself. Based on these analyses, part IV is the conclusion of this paper.

보험산업에 대한 바람직한 규제의 방향 -보험업법 개정안에 대한 검토를 겸하여-

장덕조 ( Deok Jo Jang )
한국금융법학회|금융법연구  5권 2호, 2008 pp. 37-62 ( 총 26 pages)
6,600
초록보기
This article reviews the factors contributing to the crisis in the worldwide sub-prime mortgage market and how such problems may be avoided in future, and discusses the changes in bank lending practices, the rise of collateralised debt obligations, the influence of mortgage brokers, the increased Government incentives for banks to take financial risks. Under these situations, this article explores what kind of the normative directions of insurance industry could be available. Examines the social and economic effects of the crisis, the legislative responses and other state interventions, and considers what can be done to improve regulation of the insurance industry. Recently employing sophisticated modeling techniques, at their most fundamental the reforms are no more complex than ensuring that capital held is more closely aligned to the risks of the business that insurance companies write. They are a critical component of the reform package but in isolation they do not constitute the future of insurance regulation.

서민금융의 규제방향

최동준 ( Dong Jun Choi )
한국금융법학회|금융법연구  5권 2호, 2008 pp. 65-90 ( 총 26 pages)
6,600
초록보기
A decade ago, Korea experienced the financial crisis, which helped regain the financial strength as never before. In the course of the recovery the citizens, the common people, who are low-income, low-credit consumers, suffered to the high interested loan and fell in the under-privileged and excluded segments in the financial markets. The People`s Finance means to provide services and credit by small amounts to the under-served and small businesses. Because of the growing dichotomy between the haves and the have-nots, it is essential to support the People`s Finance for the stable economic growth. The People`s Finance Institutions, which treat the People`s Finance, include Mutual Savings Banks, Credit Unions and Credit Cooperatives, Community Credit Cooperatives, Credit- Specialized Finance Companies, money lenders. It is suggested three ideas to support the People`s Finance. First, the financial literacy and education to the people is necessary. It helps to avoid badcredit status to normal financial status by understanding the importance of the credit in economic livings and establishing a healthy consumption behavior. Before reaching to the normal status they be also helped credit delinquents find jobs in order to make a living by themselves and repay their debt by the no-profit oriented entities. Second, building the People`s Finance Specialized Institution is demanded in order to finance the People`s Finance in smooth. Third, the diversified supervisory power of the People`s Finance Institutions should be united.
6,400
초록보기
These days there are many companies who suffer from KIKO, OTC Derivative. KIKO is a sort of compound or exotic option. In principle currency options use to minimize the floating exchange rate in exporting companies and individuals. But KIKO was not working to do this, would rather damaged to the buyer. Furthermore buyer can not Perceived this faulties in making contract. Not to notify faulties is negligence of the seller, a bank with which buyer has an account. KIKO is a void contract, this leads to the liability of seller. Most of complex derivatives are basically gamble, and so to have too much portion of derivatives brings about bad results. Bankruptcy of Enron, Barings, Lehman Brothers etc are typical examples. In this and other serial articles I want to verify the ignorance of domestic banks and the faulties of first and shadow seller, Invest Bank like J.P Morgan who robbed enormous money in industrial countries. These are the very author of the global financial riot.

헤지펀드와 시스템리스크에 관한 고찰 -최근 미국의 사례를 중심으로-

배준석 ( Joon Suk Bae )
한국금융법학회|금융법연구  5권 2호, 2008 pp. 121-146 ( 총 26 pages)
6,600
초록보기
Hedge funds are in the center of the American sub-prime mortgage crisis that led to the world`s financial crisis. These are funds that have the potential to significantly disrupt financial markets because they are managed outside regulation. Hedge funds have a high risk of default since they use greatly speculative and highly-leveraged investment strategies. If these go into default, the related counterparties are in danger of liquidity deficiency. A hedge fund`s default can set off a chain reaction of bankruptcies of counterparties, paralyzing the entire financial system. This is called systemic risk, and it can lead to crisis in the entire market. One policy issue regarding hedge funds is investor protection. Investor protection is needed because of the high risk-high return strategies of hedge funds. Regulation is essential for investor protection, but it also obstructs the development of the hedge fund industry. Investors in hedge funds consist of institutional investors and a small number of individuals who invest huge amounts of money. These investors have the ability to analyze and evaluate the characteristics and risks of their investments. So, compared to other funds, hedge funds have a lower need for investor protection. Another policy issue, which is more significant with regard to hedge funds, is systemic risk prevention. Financial supervisory authorities may avert systemic risks by monitoring the management of hedge funds. They can also impose reporting duties on counterparties when hedge funds are in danger of default. It is desirable that supervisory authorities prevent crises well in advance. However, these authorities have limited tools for systemic risk prevention since hedge funds are basically outside regulation. Ultimately, a central bank`s liquidity provision can protect against systemic risks. When liquidity problems in financial markets are serious, the central bank as lender of last resort can provide the solution, since it has the right to issue the country`s money. Yet central banks hesitate to serve as lender of last resort. The fear is for the moral hazard of market participants if the banks frequently take the role of lender of last resort. If market participants expect the central bank to solve problems that result from their own lax management, it would be an obstacle to the sound management of financial institutions. Nevertheless, the Bank of Korea, Korea`s central bank, should prepare to play the role of lender of last resort. The Korean government is going to permit hedge funds to be established in Korea. This requires preparation of legal supports such as the ability of the central bank to access a wide range of information. As a comparison, the Federal Reserve Board, the U.S. central bank, has played a major role in systemic risk prevention since the sub-prime mortgage crisis. Looking at American examples, including the Fed policies, provides useful suggestions for anticipating the introduction of hedge funds to the Bank of Korea and the Korean economy.

우리나라 외환관리의 발전방향

서문식 ( Mun Sik Seo )
한국금융법학회|금융법연구  5권 2호, 2008 pp. 149-199 ( 총 51 pages)
12,600
초록보기
Ⅰ. Introduction Since 1997 when Korea received bail out money from International Monetary Fund(IMF) Korea has expedited foreign exchange liberalization policy according to Memorandum of Understanding contracted between Korean government and IMF. Deregulation on foreign exchange control have some positive effects; it removes obstacles on transactions with nonresidents, reduces transaction cost, increases worldwide trades so that eventually contributes to global economic interest. However, liberalization makes a country give up her own policy measures to cope with deficit of balance of payments. Moreover, opening foreign exchange market or stock exchange market makes it difficult to protect her country from attacks by foreign capital. Korea experienced this kind of problems in September, 2008, when I am writing this thesis, as well as in 1997. Therefore, I think we need to examine the speed and priority of foreign exchange liberalization policy at this time. Ⅱ. Foreign Exchange Control in Korea The usual type of foreign exchange control which had been set up through the two World War looks like this; All foreign currencies resident acquired should be deposited or sold to government or his agent to a central pool in return for local currency at specified rates. Foreign exchange is then distributed from the pool, through licensing or similar devices, to those persons who meet the criteria of the particular governmental plan. Korea also adopted this structure in the Foreign Exchange Control Act of 1961. The act is based on three basic rules; 1. All foreign exchange should be pooled, 2. Foreign exchange can be used by only one who has actual demand, 3. All foreign transactions should be monitored by banks. There are various ways to pool foreign currencies; sales, deposit, custody and registration. Sales pooling can be said to be the strongest measure. Korea established sales pooling system in 1961. Afterward, the duty of pooling have been alleviated. One example is that government permits individuals to retain foreign exchange below 3,000 dollars in 1978. In February 1995, government abolished the duty of pooling foreign exchange, so that residents become to freely retain foreign exchange. The second rule, actual demand rule, is required to forbid insufficient foreign currencies to be wasted or to be used for speculative purpose. Foreign exchange can be bought from banks only when residents prove actual demand until in 1994 government allows corporation or individuals to buy foreign exchange without proving actual demand within a limited amount. This ceiling was eliminated in January, 2001, so that actual demand rule was abolished. Now a resident can buy foreign exchange without limitation even for the purpose of speculation. Actual demand rule in future, swap transactions was also abolished in April, 1994. The third basic rule is that all foreign transactions should be settled through banking system. This makes government be possible to monitor all foreign transactions, get statistics concerning outflow/inflow of foreign exchange. Thus, a bank that wants to do foreign exchange business have to equip certain physical or personal requirements and get a license from government. Moreover, the Foreign Exchange Control Act of 1961 of Korea was designed under the triple checking system copying the Foreign Exchange and Trade Act of 1949 of Japan. There are three barriers to pass in order to complete foreign transactions; barrier at the step of underlying transactions, barrier at the step of remittance or receipt, and barrier at airport or seaport. For example, one who want to export or import have to report to authorities with required documents. This is a regulation at the step of underlying transactions. When the person pays or receives money to/from counterpart, banks examine whether the underlying transactions were permitted or not. This is a regulation at the step of remittance or receipt. Besides these, one who carry foreign or domestic currencies through customs line should report to customs officers. This is a regulation at airport or seaport. Ⅲ. The progress of Liberalization of foreign exchange control Due to several liberalization measures since 1994, Korea has experienced drastic deregulation on foreign exchange control. All limitation on payments or receipt was abolished except some limitations on settlement methods such as write-off, paying to non-contracting party, or paying not through banks. In particular, the payment ceiling of individual was abolished, so that individual can remit or carry out foreign exchange for purpose of endowment, travel, foreign study, emigration, transferring property by emigrants, etc. without ceiling. Most capital transactions by corporations or banks were also liberalized. Foreign exchange outflow transactions such as overseas investment, purchase of foreign real estate, purchase of foreign stocks, deposit to foreign banks were allowed without meaningful restriction. Foreign exchange inflow transactions such as borrowing money from nonresidents, deposit or trust to domestic banks by nonresidents, foreign direct investment were allowed without real restriction. Specifically, domestic stock and bond market was totally opened to foreign investors in 1997. However, some discrepancies between press report and reality are found. Although Korean government announced that it completed transfer to Negative system from Positive system in capital transaction in 2001, there still be positive type regulation in capital transactions. Also, though the Foreign Exchange Control Act distinguishes "simple report" from "report should be accepted" and regards "simple report" as deregulated rather than "report should be accepted," in reality there are no difference, so both are treated to need to be accepted by authorities. Ⅳ. The speed and priority of foreign exchange liberalization Foreign exchange is the most important thing for Korea to develop its economy from the ruins of Korean War. Korea needs foreign currencies to import raw materials to make products and export them. Therefore, strict foreign exchange control is necessary and justified. However, as Korean economy has grown up the chronic deficit problem of foreign exchange is dissolved. Moreover, the strict regulations is sometimes criticized as an obstacles for corporations to expand their business to world. International institutions such as OECD, IMF have watched the progress of Korea`s liberalization measures with suspicious eyes. Here are the reasons we cannot help pursuing liberalization. However, the liberalization means that Korea will give up political powers on the problem of foreign exchange deficit and let the problem to market. Once it happens, fluctuating exchange rates replaces governmental powers and government will lose its sovereignty in maintaining economic stability. This is the state of Korea we see in 2008. Accordingly, the liberalization should not be done hastily surrendering to international pressure or being swept with current fashion. Liberalization measures should be pursued in consideration of Korea`s best interest and government have to tune up the speed and priority of liberalization within the scope that our economy can endure the deficit of balance of payments. Pertaining to the speed and priority of liberalization, I proposed some principles; first, the restrictions that are not relevant to outflow/inflow of foreign exchange but restrain corporation`s activity excessively, such as payment/receipt period regulations, should be deregulated first. Second, the transactions that can be used as speculative devices by foreign exchange speculators, such as domestic currency funding, should be restricted as last as possible. Third, capital transactions that have relatively low risk may get a priority in deregulation, however, capital transactions that have great risk such as derivative transaction should be restricted until last. Fourth, the transactions that can be used to avoid other restrictions, such as payment to non-contracting party, should not be deregulated hastily. Fifth, the monopolizing foreign exchange banking system that is the basis of current foreign exchange control should not be given up without thoughtful consideration.

상법 보험편 개정안에 대한 검토

한창희 ( Chang Hi Han )
한국금융법학회|금융법연구  5권 2호, 2008 pp. 201-234 ( 총 34 pages)
7,400
초록보기
On 6 August 2008, the Korean government submitted a draft amendment to the part of the commercial law that regulates insurance contract law. The amendment would provide consumer protections and regulate insurance parties`` relations. But the writer thinks the lawmakers should not untouchedly accept many matters such as the duty to disclose, aggravation of the risk, fraudulent claims, duty to notify other insurance contracts. This article recommends that Korean insurance contract law be enacted as a law separate from the commercial law. In implementing the new law, Korean lawmakers should carefully examine the changes to insurance law enacted by advanced countries in insurance contract law such as Germany, England, Australia, United States, Japan.
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