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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 2호 (2009)

발간사(發刊辭)

정찬형
한국금융법학회|금융법연구  6권 2호, 2009 pp. 3-4 ( 총 2 pages)
1,000
키워드보기
초록보기

자본시장법 제178조 제1항 제1호에 대한 연구

최승재 ( Sung Jai Choi )
한국금융법학회|금융법연구  6권 2호, 2009 pp. 4-46 ( 총 43 pages)
11,800
초록보기
Capital Market and Financial Investment Business Act (CMFIB A)(142)) was enacted and entered into its effect since Feb. 4. 2009. Accordingly Commercial code was changed and other rules and regulations of FSS and FSC, KRX has been made and promulgated following the CMFIBA. Still number of problems are open to the scholars and attorneys in the financial area. One of the issues is how to interpret the CMFIBA Article 178-1-1 without violating the Korean Constitutional law. CMFIBA Article 178-1 contemplated that No one shall commit any of the following acts in connection with trading (including public offering, private placement, and sale in case of securities; hereafter the same shall apply in this Article and Article 179) or other transaction of financial investment instruments. CMFIBA Article 178-1-1 prohibits the activities utilizing an unfair artifice, scheme, or devices and anybody who violates this article shall be punished criminally. Due to the criminal sanction, CMFIBA Article 178-1-1 possibly declared as null and void by the Korean Constitutional Court because that Article is too vague to follow from the normnehmer`s standpoint. For the purpose of avoiding this occasion, this paper try to show some justifying reasons from the constitutional point of view relying upon the theories and progresses in Germany and make the meaning of the words, that is artifice, scheme, or devices one by one more clear enough to follow by giving some definitions and occasions when the words can be applied.
7,700
초록보기
The newly enacted FSCMA effectively closes many long standing loopholes regarding cross-product manipulations or cross-market manipulations. The Act, however, is needed to complement a few loopholes in the regulation of derivatives-derivatives cross manipulation and a sort of front running using price connection between two different financial products. There have been some disputes with regard to Equity-linked securities (ELS) issued by securities company recently. The point of the disputes is whether securities companies knowingly manipulated the price of underlying assets to deter the accomplishment of ELS contract conditions so that they can avoid payment for an accomplished contract. While investors argue that securities companies willfully manipulated the price of underlying securities, the issuing companies insist their transactions are indispensible hedge trading for risk management. This article advocates the allegation of investors to some degree and makes some suggestions for betterment of the ELS regulation. A prospectus has to include detailed explanations about the risk and danger of so-called "hedge trading" by issuers themselves. Next, a strict sanction is required against some abusive hedge trading as an example. Finally, securities companies are expected to have sound internal control and compliance.

사모펀드 규제의 바람직한 모습

박삼철 ( Sam Cheol Park )
한국금융법학회|금융법연구  6권 2호, 2009 pp. 86-108 ( 총 23 pages)
6,300
초록보기
The global financial crisis triggered the in-depth discussion of strengthening regulation on private funds including hedge fund. IOSCO announced six regulation principles on hedge fund this June, and the EU also prepared AIFM Directive. UK and US are also pursuing to strengthen regulations on private funds. As to domestic private funds, there was no particular problem with regard to the financial turmoil. On the other hand, there are some criticisms that the regulations on the domestic private funds (and fund managers) are excessive compared to those of other countries and cause several side-effects such as adverse discrimination against domestic funds, obstacles to the development of private fund industry, and the difficulties for financial innovation. The problems about the regulation of private funds in Korea may be summarized as follows : First, the rules and regulations on private fund are not systematic and unified. Second, the FSMA regulation on private funds does not properly consider the characters of private funds, and it rather favors the regulators in enforcing laws and regulations. The FSMA classifies private funds into five types and applies different level of regulation to each of them. However, such regulatory approach is not reasonable and, rather, confuses industry and capital market. Third, the overall regulatory level for the domestic private funds is stricter than that of the advanced markets such as the UK and the US. Severe domestic regulations can adversely discriminate against the private funds and does not meet the global standard either. The better regulatory approach toward private funds can be as followed; First, the domestic laws and regulations on private funds should be integrated into the FSMA in order to apply the same level of regulation to the same economic entities. Second, it is necessary for the FSMA to put the private fund regulations altogether in the separate chapter and to use unified concept for private fund. Third, it is also necessary to improve domestic regulations to meet global standard by carefully studying the global regulatory trends. This effort is also needed for avoiding adverse discrimination against the domestic private funds.

개정신탁법상 사해신탁제도에 관한 소고

오창석 ( Chang Seok Oh )
한국금융법학회|금융법연구  6권 2호, 2009 pp. 112-144 ( 총 33 pages)
7,300
초록보기
The draft amendment to the Trust Act (the "Proposed Amendment") was released on October 27, 2009. The Proposed Amendment is aimed at overhauling the existing Trust Act which is often criticized as being outdated and inadequate for resolving many legal and practical issues currently faced in the areas of trust law. The adoption of the Proposed Amendment, which was triggered by the recent enactment of the Financial Investment Service and Capital Markets Act (which has consolidated multiple legislations (including the Trust Business Act) into one legislation), is considered a much awaited progress in the areas of trust law and a step towards finally achieving alignment with Korea`s current legal, economic and financial landscape which has undergone substantial changes since the first enactment of the existing Trust Act in 1961. Among the criticisms faced by the existing Trust Act include the lack of certainty and clarity on the issues relating to what constitutes a "fraudulent trust". Such lack of certainty and clarity was viewed as one of the key factors undermining the stability and feasibility of real estate trust projects, which were actively pursued in tandem with the development of the project financing (or PF) markets in Korea (which often utilized a collateral trust arrangement) in the aftermath of the Asian financial crisis. In addition to such criticism, the existing Trust Act was viewed as failing to keep pace with the practical needs and demands of participants in transactions which resort to a collateral trust arrangement, thereby arousing many debates and controversies among legal scholars and practitioners as to how to address a widening gap between the legal framework offered by the existing Trust Act and the commercial reality. To illustrate, the existing Trust Act was regarded as particularly problematic in that it allowed for the exercise of the right of revocation of a trust in circumstances where the parties involved in such trust (namely, the trustee and the beneficiary) acted in good faith. The fact that the right of revocation of a trust could be exercised against a bona fide trustee or beneficiary for value meant that these parties could be placed in a precarious position in the absence of any fault of their own. The lack of clarity on the extent of the restoration of the original trust asset also resulted in the inability of the existing Trust Act to properly regulate or streamline the conflicting interests among the parties to a commercial trust (including the trustee and the beneficiary (especially financial institutions acting as lenders in a PF project)). Under the existing Trust Act, the status of the beneficiary was considered unclear and this aroused many questions as to whether it would be possible to exercise the right of revocation of a trust against the beneficiary. A growing consensus on the need to address many criticisms faced by, and loopholes inherent in, the existing Trust Act culminated in the drafting of the Proposed Amendment (in particular, Article 8 of the existing Trust Act, which was fraught with many legal and practical issues). Under the Proposed Amendment, some of the problems illustrated above were addressed such that (i) more flexibility is offered to the party exercising the right of revocation of a trust as such party is able to choose the counterparty it wants revoked (i.e., either the trustee or the beneficiary); (ii) certain restrictions are imposed on the exercise of the right of revocation in circumstances where the parties involved in the relevant trust are bona fide trustee or beneficiary for value; (iii) (in the case where the relevant trust is revoked for being fraudulent) certain restrictions were imposed on the extent of recovery of trust assets from the bona fide trustee without value; (iv) certain liability(ies) are imposed on the party who established a trust (the "Company")(which is subject to revocation for being fraudulent) to ensure that a bona fide party involved in such trust would be protected from any loss or damage in the absence of any fault of its own; (v) (in the case where the relevant trust is not revoked despite being fraudulent due to the presence of bona fide trustee or beneficiary for value) the relevant creditors would be protected in that they would be able to claim recovery of trustee fees or return of beneficial certificates from the relevant parties (such as a non-bona fide trustee or beneficiary or bona fide trustee or beneficiary without value); and (vi) certain obligations to compensate the creditors are imposed on the trustee or beneficiary who established a "fraudulent trust" in collaboration with the Company. As highlighted above, the Proposed Amendment would help alleviate many chronic problems encountered by participants to a commercial trust in practice. The Proposed Amendment, once adopted, will be a catalyst for the long-term stabilization and development of the Korean trust markets as the process of establishing a trust or undertaking a real estate trust project would become more straightforward and less prone to legal and practical uncertainties.

일본의 사채관리제도(社債管理制度)와 우리 상법개정안(商法改正案)에 대한 소고

김두환 ( Doo Hwan Kim )
한국금융법학회|금융법연구  6권 2호, 2009 pp. 146-191 ( 총 46 pages)
12,100
초록보기
Trust indenture is an agreement in the bond contract made between a bond issuer and a trustee for the benefit of bondholder. The trust indenture establishes the rights, duties, responsibilities and remedies of the issuer and trustee and determines the exact nature of the security for the bonds. These days the issuing of corporate bond is gradually becoming more important in Korea. But trust indenture system is not enough to protect bondholder`s interest. Even there are some gap between principle and reality. This article introduces recently revised Japanese legal system of the indenture trustee for corporate bond, and also examines the possibilities to improve for corporate bond issuing system in the current bill on Korean Commercial Act. The author insists that the current bill on trust indenture should specify the rights and obligations of the bondholders as well as delineate the terms of the securities. Also I insist that the bill should cover the indenture trustee`s responsibility of safeguarding the interests of the bondholders. Finally, I provide some suggestions to solve the problems of issuing bond regulation with regard to the indenture trustee of the current bill on Korean Commercial Act.

신용협동조합의 발전을 위한 신용사업부문 제도개선방안

김용재 ( Yong Jae Kim )
한국금융법학회|금융법연구  6권 2호, 2009 pp. 196-244 ( 총 49 pages)
12,400
초록보기
Seemingly, a credit union may look like a commercial bank, but it is somewhat different. Credit unions have been established for a different reason than banks. They have a different structure, are governed differently, raise capital differently, offer different services to a different demographic and are taxed differently than banks. These differences are what credit unions stand out as a unique financial alternative for underserved clients, small and medium size companies. In general, credit unions are not-for-profit cooperative financial institutions owned and operated by their members. These members, who are united by a common bond of employment, association, or community, democratically operate their credit unions under the Credit Union Cooperative Act and its regulations. Credit unions have only one purpose such as the satisfaction of the financial needs by their member-owners. Due to the sole focus on serving their member-owners, credit unions have furnished excellent personal services and members often earn higher returns on their savings while paying lower interest rates for lendings. Credit unions are based on a one-member, one-vote structure, which gives members the power to direct credit union policy to meet their needs. This structure is quite different from the private business sector where shareholders vote according to the number of shares they own. The largest difference between credit unions and commercial banks is that credit union members own their credit unions. The benefits of ownership are returned to their members in the form of lower loan rates, higher dividends, and lower cost financial services. However, these differences seem to disappear recently, since credit unions and commercial banks are convergent forms from the perspective of their relative sizes, business areas and membership bases. At present, however, most of credit unions and their central office in Korea remain relatively small ones especially in their credit business areas unlike those of other countries. This article aims at analyzing the main reasons of this phenomenon and trying to enhance their competitiveness and effectiveness modeled on the advanced credit union system in other countries. The principle of functional regulation is the norm that our credit unions should pursue when comparing with other comparable financial institutions, such as community credit cooperatives and agricultural cooperatives. Pre-existent business regulations should be clearly removed because they have been too burdensome and discriminatory against credit unions compared to other financial institutions. Instead, safety and soundness regulations should be reinforced according to the Model Law enacted by the World Council of Credit Union.

보험계약자의 채권자에 의한 압류 및 추심명령에 근거한 보험계약 해지 등에 대한 소고

서재욱 ( Jae Wook Seo )
한국금융법학회|금융법연구  6권 2호, 2009 pp. 246-283 ( 총 38 pages)
7,800
초록보기
Recently, the Supreme court held that it is possible that creditor of policyholder could get the attachment and collection order to all claims relating to insurance contract and surrender the insurance policy thereby directly. However, it is problem that the court permits creditor of policyholder to surrender the policy without any consent of policyholder or legal restriction. First of all, in compulsory execution law perspective, the way of surrender value into cash is discussed as three types; ① surrender the policy by surrogating the policyholder (Korea Civil Act chapter 404), ② special conversion order by court (Korea Civil Compulsory Execution law chapter 241), ③ direct surrender of creditor of policyholder by attachment and collection order. By the way, it is undesirable that the court admits of surrender the policy by surrogating the policyholder or direct surrender of creditor of policyholder by attachment and collection order in view of the nature of surrender value. In addition, at present the amendment bill of commercial act insurance chapter which contain the provision of prohibition on attachment of claim for life insurance is pending. Also in the light of this restriction of attachment, it is problem that the court permits creditor of policyholder to surrender the policy. And there are a lot of problems in the light of legal principles of insurance law. Above of all, if the court permits creditor of policyholder to surrender the policy without limit, insurance-related person is infringed on their rights unreasonably. Especially, beneficiary must be protected his legal rights in the lights of the nature of insurance contract, and many countries made the statutes that contain the contents of restriction to claim of creditor of policyholder for protecting the beneficiary. Also, it is desirable to admit the character of personal right about surrender insurance contract which is the basis of realization the surrender value. And it is questionable who has the right of claim for surrender value. In my opinion, it is determined one by one by the case who has the right. In conclusion, it is necessary to insert the provision of protection for beneficiary into law or insurance clause, and if necessary, it should be clearly prescribed that creditor of policyholder could not surrender the policy.

투자자문업자의 주의의무 -적합성원칙과 설명의무를 중심으로

이채진 ( Chae Jin Lee )
한국금융법학회|금융법연구  6권 2호, 2009 pp. 286-318 ( 총 33 pages)
7,300
초록보기
The Capital Market and Financial Investment Business Act (the Capital Market Act) defines "investment advisers" as a "business that provides advice on the value of financial investment instruments or related judgments over class, item, acquisition, disposition, methods of acquisition or disposition, quantity, price, time, etc. Development of various types of financial investment instruments and their highly complicated structures escalated investors`` reliance on financial professionals. Recently, especially, as demand for investment advisers`` services increases and investment advisers expands their operations, protection of investors under the contractual relationship with investment advisers drew attention in perspective of financial market regulation. The Capital Market Act carries provisions of the suitability principle and duty to explain. While, these two obligations originated from regulation of broker-dealers in the U.S. securities market, the Capital Market Act provides them as applied to all kinds of financial investment business entities. What is more, the financial investment business entities are applied by the provisions when making investment recommendations to non-professional, ordinary investors. Considering, however, the differences in business operations of broker-dealers and investment advisers and the fact that the investment advice of broker-dealers is confined to a particular financial investment instruments while that of investment advisers relates to overall management of the investor`s assets, elements to be considered and disclosed to investors by investment advisers shall be different from those required for broker-dealers. Also, since every professional investor does not have the same level of understanding regarding highly complicated financial investment instruments and they turn to investment advisers when lacking full confidence in their financial experience and knowledge, they need to be included in the scope of investors protected by the suitability rule and duty to explain applicable to investment advisers.

최대선의와 보험자의 보험금지급의무

이진수 ( Jin Soo Lee )
한국금융법학회|금융법연구  6권 2호, 2009 pp. 320-348 ( 총 29 pages)
6,900
초록보기
A contract of insurance is a contract based upon the utmost good faith, and, if the utmost good faith be not observed by either party, the contract may be avoided by the other party. The duty of good faith in insurance law, first enunciated by Lord Mansfield in 1766 in Carter v. Boehm, predates the coming into existence of the United States. However, the most important and significant aspect of the duty of the utmost good faith, is the duty imposed upon the insured rather than the insurer, particularly prior to the conclusion of the contract. The duty to indemnify is, of course, the essence of an insurer`s obligation under an insurance contract. In English law, a claim under an insurance policy is, in current law, a claim for damages. There is no right to damages for late payment of damages. Often an award of interest will not reflect the policyholder`s true loss. In Untied States law, contracts usually include an implied covenant of good faith and fair dealing. A failure by a party to act in good faith may thus lead to a breach of contract action regardless of the express terms of the contract. A failure to act in good faith may also constitute a tort. Depending on the jurisdiction, the type of insurance and the alleged failing of the insurer, an insurer who acts in bad faith may incur liability not only for damages owing under the policy but also for uncovered economic losses of the insured, the insured`s emotional distress damages and attorney`s fees, substantial punitive damages, and various statutory penalties. In Korea, the insurer`s duty to pay is provided for by the Commercial code. But, where the insurer doesn`t pay insurance money to insured unjustifiably, the insured`s right is not provided for. Article 393 of the Korean Civil Code specifies general damage and foreseeable special damage as the remoteness of damages. Thus. whether or not the insured has a right to damages for late payment as special damages is based on the Article 393 of the Korean Civil Code. Also a failure to pay may constitute a tort according to circumstances. However, There is little hope of the interpretation of law on the korean precedent cases. Therefore, at this time there is a need to make provisions for protecting the insured.
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