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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 : 6권 1호 (2009)

발간사(發刊辭)

정찬형
한국금융법학회|금융법연구  6권 1호, 2009 pp. 3-4 ( 총 2 pages)
1,000
키워드보기
초록보기
초록보기
If a contributor is recognized as having actual control over a specific deposit, the owner of the bank account cannot be viewed as having received that deposit as a gift subject to gift tax. Accordingly, recognizing a contributor`s actual control over a deposit is important in determining the propriety of gift taxes imposed on the owner of the relevant bank account due to the receipt of that deposit amount as a gift. In the past, a contributor`s actual control over a deposit was widely recognized without taking into account the relationship between the contributor and the account owner. However, the scope of recognizing a contributor`s actual control over a deposit should differ depending on whether the contributor and the account owner are members of the same family as a consumer community. In other words, if they have a family relationship, the recognition of the contributor`s actual control over the deposit should be strictly limited, and even if they do not have a family relationship, such recognition should be limited pursuant to the purpose of the real-name financial transaction system more than prior to the implementation of such real-name financial transaction system. The Supreme Court Decision rendered on March 19, 2009, Case No. 2008Da45828 (the "Decision") changed this precedent, holding that a contributor will not be recognized as a party to the deposit contract based on the existence of an implicit agreement. The Decision open ups the possibility for an account owner to enjoy double benefits by allowing it the protection of the Depositor Protection Act and exempting it from gift tax based on a logic that the contributor is exercising actual control over the deposit. However, such possibility would hinder the implementation of the real-name financial transaction system, which is the essential intent of the Decision. Therefore, if the contributor`s actual control of the deposit is limited and the scope of the contributor`s actual control over the deposit differs depending on the whether the contributor and the account owner are members of the same family, such double benefits may be prevented and the implementation of the real-name financial transaction system may be greatly enhanced by increasing the risks of anyone using a borrowed-name account.

예금계약에서의 예금주 판정에 관한 문제

이재용 ( Jae Yong Lee )
한국금융법학회|금융법연구  6권 1호, 2009 pp. 37-53 ( 총 17 pages)
5,700
초록보기
On Mar. 19, the Supreme Court decided that as long as a deposit contract was formed through real name verification procedures, an owner of deposit funds other than a deposit title-holder would be regarded as the party to deposit contract at the extraordinary cases where there should exist the written contract between the financial institution and the owner of deposit funds. Previous court decisions had held that a claim to return of deposit could be vested in the owner of deposit funds, not the deposit title-holder even by means of explicit or tactic agreements between the financial institution and the owner of deposit funds. According to the recent Supreme Court`s decision, even though, at the time the deposit contract was formed, the financial institution knew the circumstances where the owner of deposit funds did not deliver a deposit passbook and a transaction personal seal to the deposit title-holder, and possessed them, thereby withdrawing interests or principal of the deposit, it shall not be determined that the financial institution had intent to enter into a deposit contract with the owner of deposit funds. The Court`s decision seems to be in line with the intents of parties involved in a deposit contract and our financial circumstances. First, the financial transactions occurring massively, repeatedly like deposit contract must be treated by the financial institution in fixed form and with speed. In addition to, since August 12, 1993, our people have come to know that all financial transactions, in principle, must go through verification procedures of real name transactions. Above all, non-real name financial transactions made by hiding real name may be used in unlawful and illegal acts such as tax evasion, hiding of fruits of crimes and money laundry, etc. Therefore the deposit title-holder should be treated as a real name basically. In conclusion, the view of the Supreme Court that an owner of deposit funds who is not a deposit title-holder, is allowed to be acknowledged as the party to the deposit contract only in very exceptional cases is appropriate. The Court`s decision supports the legislative purport of the Act on Real Name Financial Transactions substantially.

현선연계 시세조종행위의 규제체계에 관한 소고

김용재 ( Yong Jae Kim )
한국금융법학회|금융법연구  6권 1호, 2009 pp. 57-97 ( 총 41 pages)
11,600
초록보기
As to prohibited activities on market manipulation, Article 176 paragraph 4 of the Financial Investment Services and Capital Markets Act in Korea, which has been effective since February of 2009th, provides that "no one shall conduct any activity falling under the following subparagraphs with respect to the transactions of listed securities or exchange-traded derivatives: 1. changing or fixing the price of the underlying asset of exchange-traded derivatives for the purposes of gaining unjust profits or having a third person gain unjust profits when purchasing or selling the exchange-traded derivatives; 2. changing or fixing the price of the exchange-traded derivatives for the purpose of gaining unjust profits or having a third person gain unjust profits when purchasing or selling the underlying assets of exchange-traded derivatives; 3. changing or fixing the price of securities prescribed by the Presidential Decree as linked to the securities concerned for the purpose of gaining unjust profits or having a third person gain unjust profits when purchasing or selling the securities." A question arises whether Article 176 paragraph is enough to regulate interrelated unfair transactions between the commodity and derivatives markets completely. This paper does answer negatively because current regulators such as the Financial Service Commission (FSC) or the Korea Exchanges (KRX) do not have a supervisory jurisdiction over commodities or underlying assets at all. Thus, those regulators may not ask suspicious traders or relevant investment bankers to submit necessary data and materials for effectively supervising unfair transactions regarding underlying assets. This paper is trying to re-allocate supervisory jurisdictions reasonably among relevant regulators such as derivatives regulators and commodities regulators, thereby having the FSC or the KRX gain any materials easily and promptly from the commodity market itself. In addition, it suggests the reform of the current regulatory regime. Tentatively, the MOU regarding the trans- mission of necessary data may be arranged between the derivative regulator and commodity regulator. However, this alternative cannot be final and permanent. Other legal and regulatory systems of financially advanced countries are deeply analyzed for the successful study.

상호금융기관별 설립근거법상 건전성 규제제도 개선방안에 관한 연구

이용찬 ( Yong Chan Lee )
한국금융법학회|금융법연구  6권 1호, 2009 pp. 99-131 ( 총 33 pages)
7,300
초록보기
There are differences among prudential regulations of Korea`s cooperative financial institutions such as Credit Unions, Agricultural·Fisheries·Forestry Cooperatives and Community Credit Cooperatives. It is because they are established under different laws and are regulated by different authorities including Ministry for Food, Agriculture, Forestry and Fisheries, Korea Forest Service, Ministry of Public Administration and Security, Financial Services Commission, and Financial Supervisory Service. Applying different regulations could deteriorate the overall competitiveness of the industry by stifling fair competition between cooperative financial institutions, which conduct similar business activities. In this paper, we noted these potential problems and explored ways for improvement, especially in the area of prudential regulations. First, we can find differences among the regulations in computation of several management guidance ratios. For Net Capital Ratio, the main prudential indicator, the limits on investment money and bad debt allowance are different. Also, when cooperative financial institutions calculate loan overdue rates, different standards are applied. Therefore, it is hard to evaluate and compare their soundness only with these indicators. Besides that, it was found that different methods are applied for calculating required reserves. In particular, there are remarkable differences in business regulations, such as investment and management of spare cash, limit on loans per person, limit on loans per non-member between Credit Unions, Agricultural·Fisheries·Forestry Cooperatives and Community Credit Cooperatives. In case of Credit Unions and Agricultural·Fisheries·Forestry Cooperatives, which are directly supervised by financial supervisory authorities, more strict business regulations are applied. On the contrary, Community Credit Cooperatives, which are supervised by the Ministry of Public Administration and Security, less strict regulations are applied. Differing prudential regulations of cooperative financial institutions is against the principle of "the same market, the same regulation." It can undermine competition and make it hard for regulatory authorities to establish appropriate policy responses. Futhermore, dispersion of supervisory authorities can also stifle competition and create market inefficiencies. Going forward, it is necessary to reconcile differences in prudential regulations legislatively and unify different supervisory authorities into one. Futhermore, cooperative financial institutions will be able to achieve sustainable growth only when they take a step further from their traditional functions to act as a financial institution serving people with low income and low credit ratings.

피담보채권의 변제기 후 양도담보의 효력 -대구지방법원 2002. 3. 29. 선고 2002카합1-

김재범 ( Jae Bum Kim )
한국금융법학회|금융법연구  6권 1호, 2009 pp. 133-162 ( 총 30 pages)
7,000
초록보기
The case which in this article tried to research is about the effect of share transfer security contract. The petitioner A loaned the corporation and made a contract of security by means of transfer for half the total outstanding shares with the corporation. When corporation didn`t perform its debt, the petitioner demanded to record his name in the register of shareholders, however it was denied. Moreover the secured shares were transferred to B and B held shareholders meeting and board directors and became a representative director. In this case the issue is who should be the owner of the secured shares after the time for performance of the claim secured. The owner might be changed according to the theory of share transfer security. If we rely on the theory that ownership of secured shares be belonged to the creditor in trust and after the due time of debt he obtain the ownership definitely, then A would be the owner of secured shares. On the other hand, there is another theory that creditor should hold the mortgage right to the secured shares throughout the hole period of debt. The court has applied the former theory to the share transfer security. The Supreme Court might not have had same opinions on share transfer security. In this case the Supreme Court found that A (creditor) was the owner of the secured shares after the time for performance. Recently the Court found that when the appraisal amount of secured shares would be higher than debt, the creditor has the duty of adjustment after the due day and he has to back the residual amount to debtor. On the contrary when the appraisal amount of secured shares would be lower than debt, then he has to inform about that to debtor. After such a adjustment he could be owner of the secured shares. In this case the reasoning of the decision has some discordance with the former decision. It would be needed to try to find evident standards of reasoning about how to decide the owner of secured shares after the due day of debt in share transfer security.

담보부사채(擔保付社債)의 활성화에 관한 연구

정소민 ( So Min Chung )
한국금융법학회|금융법연구  6권 1호, 2009 pp. 165-193 ( 총 29 pages)
6,900
초록보기
In general, small and medium-sized enterprises in Korea ("SMEs") heavily rely on bank loans for their financial needs. This is because Korean bond market has been developed by issuance of unguaranteed unsecured bonds by corporations with high credit ratings. As a result, SMEs cannot finance through Korean bond market since they do not have credit ratings high enough to issue unguaranteed unsecured bonds. However, it will be desirable that SMEs have additional funding source alternative to bank loans in order to obtain timely and efficient financing. In this regard, issuance of secured bonds can play an importance role in SMEs`` financing via Korean bond market. Theoretically, SMEs with high quality assets are able to issue corporate bonds secured by their high quality assets even though they have relatively low credit ratings. However, practically speaking, a few obstacles to issuance of secured bonds in Korea exist. In this connection, I make a few proposals for activating secured bond market in Korea as follows: First, the scope of collateral under the Secured Bond Trust Act of Korea must be broadened, including intellectual property or receivables without debt certificates; Second, a security registration system must be introduced as a new publication method for security interests created on movable assets or receivables; and Third, credit rating experts and trust experts should be nurtured to accurately rate value of various collateral and to conduct trust business, respectively. If issuance of secured bonds becomes active in Korean bond market, SMEs with high-quality assets can finance via Korean bond market by way of issuing secured bonds and have better chance to obtain timely and efficient financing.

손해보상제도에 관한 새로운 접근과 무과실보험 -자동차사고를 중심으로-

장덕조 ( Deok Jo Jang )
한국금융법학회|금융법연구  6권 1호, 2009 pp. 195-215 ( 총 21 pages)
6,100
초록보기
While civil law is strongly tied to the concept of "fault," the tort system and liability insurance, in some countries it has also been recognized to be considerably ideal mechanisms for providing injured persons with the compensation that they need without regard to fault of blame. For example, as the number of automobiles in use multiplied, and the costs of automobile accidents did likewise, some of the countries adopt a system of no-fault compensation for accident victims. The basic concept of no-fault insurance is the payment of certain benefits for losses resulting from automobile accidents without regard to tort liability. Thus, there shall be no tort liability with regard to loss suffered by any person entitled to receive benefits, The purpose of no-fault insurance is to ensure that insurance companies provide immediate minimal benefits for injured in automobile accidents in order to equitably and effectively handle the greater bulk of personal injury claims arising out of automobile accidents. In this paper, my focus has been to enunciate the nature of no-fault insurance and to examine its effect in Korea. My deliberate conclusion is that in a broader context, the no-fault insurance could work with a wide variety of liability insurance mechanisms. The most comprehensive pure no-fault compensation system in the world is that in New Zealand. The Accident Compensation Corporation, a government corporation, collects premiums from a variety of sources and provides benefits, without regard to fault, to all persons injured in motor vehicle accidents, workplace accidents, and home accidents in New Zealand. In this paper, I have argued that a person who is injured in an accident can receive compensation, under the no-fault system, for loss of faculty (bodily function), health care costs, and so on. No-fault means a system which consists of (1) a right to personal injury benefits without regard to fault after an automobile accident; (2) a form of automobile insurance that provides such benefits for insureds and (3) a law or practice that minimizes the cost of automobile insurance by prohibiting some or all tort lawsuits.

보험금청구사건에서의 우연성의 입증책임

김상수 ( Sang Soo Kim )
한국금융법학회|금융법연구  6권 1호, 2009 pp. 217-243 ( 총 27 pages)
6,700
초록보기
Accidental presence becomes a material issue in the insurance cases. Then, who should burden of proof of the presence accidental influences the result of the insurance lawsuit. The insurance case that becomes a problem is a damage insurance and a casualty insurance here. Because accidental is insurance person`s immunity reasons for life insurance, it doesn`t become a problem. The necessity for discussing who has the burden of proof of accidental in the damage insurance and the casualty insurance practically and theoretically is not a little. By the way, the burden of proof of accidental is not discussed too much. There are neither a lot of judicial precedents nor theories. On the other hand, a lot of judicial precedents and theories concerning the burden of proof of accidental are progressed in Japan. Moreover, a new insurance law is enacted in Japan along with such development. First of all, the judicial precedent and the theory of Korea are taken up in this study. Next, the judicial precedent and the theory of Japan are taken up, the view in the future is described, and it takes the place of the connection.

이사의 책임과 임원배상책임보험의 담보범위에 관한 연구

김기수 ( Ki Su Kim )
한국금융법학회|금융법연구  6권 1호, 2009 pp. 245-275 ( 총 31 pages)
7,100
초록보기
As Usual, a director has a duty to the corporation to perform the director`s functions in good faith, in a manner that he of she reasonably believes to be in the best interests of the corporation, and with the care that an ordinarily prudent person would reasonably be expected to exercise in a like position and under similar circumstances. Therefore, the director who fails to fulfill his or her duty as outlined above may be liable, the Liability can exist for directors when they cause financial harm to the corporation, act solely on their own behalf and to the detriment of the corporation, or commit a crime or wrongful act, certain acts may subject an officer or director to personal liability to the corporation and the third party. Insurance against directors`` and officers`` liabilities (usually called "D&O" insurance) provides additional meaningful protection to corporate directors, that is, D&O insurance is like general liability insurance, and covers costs that the directors and officers of an organization might become legally obligated to pay as a result of damages to another party. Many corporations in Korea are purchasing D&O insurance as expecting that it protects the directors and officers from personal liability sufficiently, however, the Insurer shall not be liable to make any payment for loss in connection with any claim or claims-made against the Directors or Officers arising out of any exclusions in D&O insurance policy. In this article, the scope covered D&O insurance is considered with respect to exclusion clauses of the D&O insurance for which alleged Directoral Liability is removed and immunized, Particularly D&O insurance policy being executed in Korea is unlike that of USA, the problems that exclusion clauses of the D&O insurance in korea immunized the original ability of managing risks of the directors, transferring the liability with a risk to insurer and minimizing the liability is being discussed in the relation to the Directoral Liability.
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