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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 : 7권 2호 (2010)

발간사(發刊事)

정찬형
한국금융법학회|금융법연구  7권 2호, 2010 pp. 3-4 ( 총 2 pages)
1,000
키워드보기
초록보기

미국의 금융개혁법이 한국의 금융제도에 미치는 영향 - 금융규제,감독체계를 중심으로 -

배준석 ( Joon Suk Bae )
한국금융법학회|금융법연구  7권 2호, 2010 pp. 3-42 ( 총 40 pages)
8,000
초록보기
The Dodd-Frank Wall Street Reform and Consumer Protection Act was enacted in July, 2010. Because of the United States` considerable influence on the world`s economy, the country`s financial reform plans have attracted the world`s attention ever since discussions regarding the Act commenced. The Act is expected to be a rudder for financial reform that many countries will use to move forward. Therefore, an in-depth study on the Act can provide numerous insights and suggestions regarding the financial reform activities in Korea as well. It is, however, obvious that a country`s financial system cannot be uniformly applied to other countries because each financial system reflects that particular country`s political and economic characteristics. With that limitation in mind it is very useful, applicable, and essential to take Korean traits into consideration when applying the Act to the financial system in Korea. While some aspects of the Act have direct implications for the Korean financial system, other aspects do not. For example, the Act established the Financial Stability Oversight Council, but such a collective decision-maker is not appropriate for Korea because the central banking and financial supervisory system of Korea differs from that of the United States. Particularly, the Bank of Korea, Korea`s central bank, does not have financial supervisory powers as of now. Examples of direct applications of the Act, however, would be the orderly liquidation authority and payment/settlement supervision as those and other provisions furnish Korea with useful information. Establishing an organization taking exclusive charge of consumer financial protection is not urgent in Korea because the integrated financial supervisory authority has just begun taking new measures for strengthening consumer financial protection. Additional provisions related to the Federal Reserve System, such as the publication of more information, also can be directly applied to Korea`s central bank.

미국 도드-프랭크법의 주요 내용 및 우리나라에서의 시사점

김홍기 ( Hong Ki Kim )
한국금융법학회|금융법연구  7권 2호, 2010 pp. 45-89 ( 총 45 pages)
12,000
초록보기
The Dodd-Frank Wall Street Reform and Consumer Protection Act (H.R.4173, hereafter the "Bill") is a federal statute in the United States that was signed into law by President Barack Obama on July 21, 2010. The passage of the Bill is the most sweeping change to financial regulation and represents thorough regulatory reform of the laws governing the financial industry since the Great Depression. The Bill touches every domestic financial entity and affects most foreign financial entities in the United States. While most of the Bill`s provisions are aimed at large, complex financial institutions, smaller institutions are affected by many of the regulatory changes as well. As many of the Bill`s provisions give a basic structure of reform and leave the regulators to fill in the details over the next 6 to 18 months, the process of implementing the Bill`s provisions promises to be a dynamic one. Consequently, the final shape and practical impact of the Bill are still years from being understood. This article focus on important areas of legislation that are of particular interest and implications in Korea. To review its implications in Korea, this article is organized into five parts. Part I provides overview of the fundamental issues which will be raised in next sections. Part II deal with the purpose and progress of law making of the Bill. Part III review major contents of the Bill and comment each provision` implications. Part IV analyze of its implications in Korean economy and financial supervision. Part V concludes and presents the direction for the Prospective of Korea`s relevant regulations.

미국 금융개혁법의 소개와 전망: 장외파생상품의 규제를 중심으로

신현탁 ( Hyeon Tak Shin )
한국금융법학회|금융법연구  7권 2호, 2010 pp. 91-112 ( 총 22 pages)
6,200
초록보기
For the financial regulatory reform of the United States, Dodd-Frank Wall Street Reform and Consumer Protection Act was legislated in July, 2010, and OTC derivatives would face tougher regulation. First, swaps and security-based swaps like CDS shall be submitted for clearing to a derivatives clearing organization, if CFTC or SEC determines that these are required to be cleared and the clearing house accepts it for clearing. Second, no federal assistance may be provided to any swaps entity with respect to any swap or security-based swap. Third, in connection with the listing of contracts or swaps in excluded commodities that are based upon the occurrence, extent of an occurrence, or contingency, CFTC may determine that such contracts are contrary to the public interest. Fourth, CFTC and SEC are supposed to cooperate with each other in the approval process of novel derivative products. These regulatory change reflects the fact that the suffering of american people was so severe that they would not endure any longer a harm the investment with such OTC derivative may cause to national economy.

각국의 금융제도에 대한 올바른 이해와 우리의 개선방안 : 영국의 금융시스템 이해

장덕조 ( Deok Jo Jang )
한국금융법학회|금융법연구  7권 2호, 2010 pp. 117-152 ( 총 36 pages)
7,600
초록보기
After the Reform of 1997 Financial Regulatory System in the United Kingdom, the Financial Services and Markets Act 2000 (FSMA), which respond to some common challenges faced in twenty-first century financial regulation, enacted. That is, the U.K. has sought to match the unitary nature of its institutional arrangements for financial regulation with an integrated legal framework. On July 26, 2010, HM Treasury of UK published a consultation paper setting out far reaching reforms to the structure of financial regulation in the United Kingdom. The Consultation follows the announcement by the Chancellor of the Exchequer that the UK Financial Services Authority would be abolished, prudential supervisory powers returned to the Bank of England, and the `tripartite system` of financial regulation brought to an end. The specific proposals include the transfer of the FSA`s functions to four new bodies: the Financial Policy Committee, the Prudential Regulation Authority, the Consumer Protection and Markets Authority and a Serious Economic Crime Agency, which would take over the FSA`s role in prosecuting market abuse and insider dealing. The UK Government will present further details and proposals, including draft legislation, for further consultation in early 2011. The reforms will then be implemented in 2012. During the transitional period, and prior to legislation, structural changes will be made at the FSA in preparation for the proposed reforms. Early of 2000, there is an argument that we had better enact `an integrated financial` act such as FSMA. This article tries to understand exactly the UK`s financial system and review the past argument critically and offers some observations. Throughout the world, there is wide variety in the existing institutional arrangements and, despite the current interest in the single regulator model, its adoption in practice remains relatively rare. The recognition that national institutional arrangements evolve under the influence of local factors, as well as global trends in financial markets, suggests that there is no one ideal model that is universally applicable.

각국의 금융제도에 대한 올바른 이해와 우리의 개선방안 : 일본의 금융법 개혁에 관하여

김상수 ( Sang Soo Kim )
한국금융법학회|금융법연구  7권 2호, 2010 pp. 155-188 ( 총 34 pages)
7,400
초록보기
The reform or the change in financial law is in a worldwide tendency. Such a situation is the same in not only Korea but also Japan with a similar legal system to it. Financial Big Bang in 1998 is started in Japan and, up to now, legislation related to a lot of financial law has been performed. This research introduces mainly three important laws separately at time about reforming financial law in Japan. The overall frame and the feature are the main objects around an important system. The three law are Financial Big Bang in 1998, Financial Instruments and Exchange Act in 2007, and Fund Settlement Act in 2009. It is Financial Services Agency to play the most important role in japanese financial reform. It means it is the most important that financial authorities play a leading role in legislation related to finance. There is a target of reforming financial law in Japan in not only the investor`s protection but also a national economic development by the promotion of the investment. The latter is not so though the former achieved an expected result. I think that coexisting of the investor`s protection and the promotion of the investment is problems of an eternal financial law.

기타 : 보험수익자(保險受益者)의 지정(指定),변경(變更)

노일석 ( Il Seok Noh )
한국금융법학회|금융법연구  7권 2호, 2010 pp. 193-241 ( 총 49 pages)
12,400
초록보기
The Beneficiary of life insurance is the person the policyowner designates to receive the benefits payable when the insured dies. The right to designate the beneficiary is the most important right the policyowner has. The right to change the beneficiary is also an important right of the policyowner. A clear, current beneficiary designation is extremely important to the policyowner, the beneficiary, and the insurer. It is important to the policyowner, because she purchased the insurance primarily to benefit a certain person or persons. Most modern life insurance contracts of USA define the rights of a policyowner to change the beneficiary in a policy provision such as "your change-of-the beneficiary request will not be effective until recorded by us at our Home Office". The Article 733(Right to designate or change beneficiary) of the Korean Commercial Code(KCC) provides as the following: "Article 733(Right to designate or change beneficiary) (1) The policyholder is entitled to designate or change the beneficiary (2) If the policyholder has died without exercising the right of designation mentioned in paragraph (1), the insured shall be the beneficiary, and in case where the policyholder has died without exercising the right of change mentioned in paragraph (1), the right of the beneficiary shall be settled: Provided, that this shall not apply where there is an agreement by which the policyholder`s successor may exercise the right mentioned in paragraph (1) in the case of the policyholder`s death. (3) If the beneficiary has died during the cover period, the policyholder may re-designate any other beneficiary. In such a case, if the policyholder has died without exercising the right designation, the inheritor of the beneficiary shall be a beneficiary (4) If the insured event occurs before the policyholder`s exercises the right of designation as referred to in paragraphs (2) and (3), the inheritor or beneficiary shall be a beneficiary". Article 30 of the Korean Civil Code provides as the following: "Article 30(Simultaneous Death). In case two or more persons died of the same peril, it is presumed that they died at the same time". This Article deals with diverse and ambiguous problems concerning with the Article 733 of the KCC. We will review such problems as non-designation of beneficiary, designated beneficiary as a inheritor, the death of inheritor of the beneficiary, change of the beneficiary, simultaneous death and the beneficiary, and other diverse relevant problems.

기타 : 현행법상 한국은행의 법적 성격

노철우 ( Chul Woo Rho )
한국금융법학회|금융법연구  7권 2호, 2010 pp. 243-285 ( 총 43 pages)
11,800
초록보기
The Bank of Korea was established by the Bank of Korea Act to contribute to the sound development of national economy by seeking price stabilization through the establishment and execution of effective monetary and credit policy. The monetary and credit policy by the Bank is a kind of economic administration and belongs to macro economy policies. When we are asked what the legal characters of the Bank of Korea, we usually answer that the Bank is a special juridical person without capital. This reply is correct, but it does not represent in full the legal characters of the Bank. This thesis is to draw the legal characters of the Bank of Korea by analyzing the Constitution of the Republic of Korea, the Bank of Korea Act, the Act on the Operations of the Public Institutions, and so on. The first chapter of this paper deals with the purpose and scope of this study. The second chapter draw the legal characters of the Bank of Korea by analyzing current laws in Korea including the Bank of Korea Act. In the third chapter, I extract some problems from the legal characters of the Bank drawn in the second chapter. In the fourth chapter, I suggest some legislative amendment schemes regarding the legal characters of the Bank. The fifth chapter draw a conclusions of this thesis. The Bank of Korea has the characters of a juridical person, a subject of administration, a financial institution, a legal institution, a national institution, and a public institution under the current laws in Korea. The article 3 of the Bank of Korea Act stipulates that "The monetary and credit policy of the Bank of Korea shall be neutrally established and independently executed, and the autonomy of the Bank of Korea shall be respected." In light of the purport of the above article, the Bank of Korea should be exempted from the object of the Act on the Operations of the Public Institutions. In order to protect the Bank of Korea against the unlawful intervenes form the Government and to relive the Bank by the Constitutional Court Act, the Bank of Korea should be a constitutional institution.

기타 : 영국의 겸업주의와 이해상충방지에 관한 연구

김용재 ( Yong Jae Kim )
한국금융법학회|금융법연구  7권 2호, 2010 pp. 287-322 ( 총 36 pages)
7,600
초록보기
Top two countries with the most developed financial system in the EU are Germany and the United Kingdom. Both countries are similar in terms of the universal banking system, but are different in detail. In Germany, the Banking Act does apparently authorize a pure universal bank model, thereby allowing many commercial banks to conduct securities businesses directly under their roofs. German banks are allowed to conduct broad scopes of financial activities including commercial banking and investment banking and so forth. The Germany banking system contributed to the enactment of `the EC Credit Institutions Directive of 2000` (hereinafter `the Directive 2000`). Due to a current global financial crisis caused by the bankruptcy of the Lehman Brothers in 2008, the U.S. Congress swiftly enacted `the Dodd-Frank Wall Street Reform and Consumer Protection Act` (hereinafter `the Dodd-Frank Act`) which has been effective since July of 2010. The Dodd-Frank Act includes the Volker Rule which prohibits commercial banks from conducting securities activities by their own accounts and from investing PEFs and hedge funds. This event make us reconsider the EU banking system itself in order to determine that the EU will also need to reform its system based on either the Volker Rule or the Dodd-Frank Act. The commercial banking department of a pure universal bank may be easily subject to contagion from serious risks of an investment banking department such as a subprime crisis. If all the EU countries adopted the Directive 2000 based on the German banking system, they would be severely impaired by the sub-prime crisis. However, this is not the case because the U.K. has established its own universal banking model, so called a subsidiary model, rather than faithfully following to the Directive 2000. This paper overviews the current U.K. model and analyzes deeply reasons why the U.K. has developed its own universal banking model different from other EU countries, Old Acts and practices are also considered. Part II generally introduces the universal bank model of the Directive 2000 in order to emphasize the unique characters of a subsidiary model in the U.K. Part III deals with the overall U.K. universal banking model, views the background of a Big Bang in 1987, and analyzes the permissible securities activities of a subsidiary corporation in a financial group. Part IV refers to the conflict of interest problems in a financial group when conducting both commercial banking and investment banking activities and searches any tools for solving those problems in the context of either current laws or self regulations. Finally, part V is a conclusion of this paper.
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