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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 : 8권 1호 (2011)

발간사(發刊辭)

정찬형
한국금융법학회|금융법연구  8권 1호, 2011 pp. 3-4 ( 총 2 pages)
1,000
키워드보기
초록보기

KIKO 1심 판결의 내용 및 분석

박진순 ( Gene Soon Park )
한국금융법학회|금융법연구  8권 1호, 2011 pp. 3-35 ( 총 33 pages)
7,300
초록보기
The value of Korean Won against U.S. Dollars had been increasing stably in a consistent manner until the end of 2007. The value of Korean Won, however, started to plummet suddenly in 2008 as the global financial crisis occurred as a result of the sub-prime mortgage problem in the U.S. and other factors. Such dramatic change in the value of Korean Won triggered a sharp rise in disputes involving over-the-counter derivatives products. The KIKO litigation is a major example of such disputes. Disputes involving KIKO products began in 2008 as the Fair Trade Commission conducted its regulatory review of the contracts used for KIKO transactions. Subsequently, the disputes went through a dispute mediation process at the Financial Services Commission and even prompted the Financial Supervisory Service to audit the banks that had sold the KIKO products. The KIKO controversy was also the subject of inspection by the National Assembly during its annual audit of the executive branch of the government. Civil lawsuits, including preliminary injunction and main civil claim cases, began to appear in late 2008. After two years of intensive review, courts have ruled on 200 or so civil cases at trial level. The trial rulings covered unprecedented in-depth analyses of issues relevant to derivatives products and financial engineering. This paper summarizes the judicial view of main issues of the KIKO litigation as reflected in the trial rulings and discusses its implication. Specifically, this paper focuses on the following main issues of the trial rulings: (1) whether KIKO products are structurally fair (Chapter II); (2) whether KIKO products are suitable for foreign exchange hedging (Chapter III); (3) what zero cost means (Chapter IV); (4) whether the amount of margins earned by banks under KIKO contracts is appropriate (Chapter V); (5) whether it is permissible to terminate KIKO contracts based on the change-in-circumstances theory (Chapter VI); and (6) whether KIKO contracts constitute "standard terms and conditions" (Chapter VII). It is understood that the courts have made correct decisions in the KIKO civil lawsuits by poignantly recognizing problems with numerous arguments made by plaintiff companies which are inconsistent with basic principles underpinning the financial market, derivatives products and hedging systems. The fundamental cause of the KIKO controversy was the abrupt rise in the foreign exchange rate, which no one had foreseen or could control. Thus, it is undesirable to transfer the consequence of or responsibility for the rise in the foreign exchange rate to banks through litigation. The challenge being faced should be resolved through providing credit support to small to medium-sized companies as a matter of national concern or mitigating negative side effects of the government goal of maintaining a high foreign exchange rate for Korean Won from a financial or industrial policy perspective.

외국의 장외파생상품 피해 관련 사례와 우리나라에 대한 시사점

윤성승 ( Sung Seung Yun )
한국금융법학회|금융법연구  8권 1호, 2011 pp. 37-79 ( 총 43 pages)
11,800
초록보기
KIKOs are OTC currency option derivatives actively sold after 2007 in Korea. The loss of KIKO buyers was focused again by the public in November 2010, when the Seoul Central District Court decided 118 decisions on KIKO cases. Unfortunately, among the 118 cases, 99 plaintiffs lost in the first instance court. It was shocked to the plaintiffs since they were small and medium size corporations which, as they asserted, did not have enough knowledge and skill to understand and analyze the underlying risk of the KIKO financial derivatives. To decide the legal liability on KIKO derivatives, the characteristics of the structured financial derivatives must be considered. The designers and sellers of the derivatives have sufficient knowledge and skill to understand the inherent risk. However, the buyers are usually do not have such skill. Between seller and buyer, there is information asymmetry. In this article, I reviewed five cases related to OTC derivatives investment loss, including two Korean offshore funds` cases litigated in the U.S. (Diamond Fund case and Morning Glory Fund case), two U.S. cases (BT Securities(Gibson) case and P&G case), and one recent German Supreme Court case in March 2011. From the cases reviewed, I suggest some implications to consider to decide KIKO cases in higher courts in Korea. My suggestions are especially related to the fraud, misrepresentation, duty to explain, and suitability duty. First, since the buyer usually relies on the information and analysis provided by the seller to decide the purchase of the financial derivatives, the seller must clearly prove that the buyer has enough independent competence and skill to evaluate the relevant risk of the derivatives, if the seller asserts that the buyer decided independently or there was no reliance on the seller`s explanation on the risk. When there is information asymmetry between the parties of derivatives, it is usual for buyer to rely on the seller. It is exceptional that buyer does not rely on the seller when derivatives are purchased. Thus seller must prove for the exceptional circumstance. Second, the seller of derivatives has the duty to inform to the buyer on the value of the derivatives they sell. If the seller misinformed or omitted material information needed to decide the value, it can be a fraud or misrepresentation. Such duty can be an implied contactual obligation, even though it is not explicitly mentioned on the derivatives contract. Third, regarding the duty to explain and suitability duty, it is not enough for seller to explain theoretically the contents of the derivatives contract. The purpose of explanation and suitability is to make the buyer to understand the risk and product. To implement the principle of self decision to the buyer, it needs for buyer to have the same level of understanding on risk through the explanation of the seller. The seller must consider whether there is a gap of understanding to the buyer when the seller gives material information to the buyer or explain materiel factors on the risk. Such active duty to explain or suitability duty is based on the good faith and fair dealing. If the seller did not achieved such level of the buyer`s understanding by his explanation of the derivatives, it can be the breach of duty to explain or suitability duty.

키코계약(契約)에 대한 법적쟁점의 재검토

박선종 ( Sun Jong Park )
한국금융법학회|금융법연구  8권 1호, 2011 pp. 81-116 ( 총 36 pages)
7,600
초록보기
On November 2010, Seoul central district court has announced its views on the KIKO issue through a 100 or so series of rulings. However, the rulings lack the necessary examination of the contract structure as well as consideration for the different circumstances in each of the law suits. KIKO contracts does have some hedging properties to a certain extent. However, they are more or less a speculative investment tool rather than a hedging tool. 1:2 leverage KIKO contracts as in the cases, would sell 2 call options and obtain higher risk in order to finance the cost of buying 1 put option or the primary cost of hedging. Another words, 1:2 leverage KIKO contracts by its structure, does not reduce risk but rather increases it which is why KIKO contracts should not be considered hedging tools. Considering the zero cost nature, the profit margin and the liability of the involved parties, fraud and mistake may well be discussed as are some cases overseas. However, all the 100 or so lawsuits have different factual circumstances which needs to be considered separately case by case. In one extreme, there may be cases where the court should acknowledge the customers or the company`s claims of fraud by the banks. On the other extreme, there may be cases where the court should accept the bank`s defense ruling the company`s intent as speculative investment. Mistake or misrepresentation will be an issue somewhere in the middle ground. There will be varying rulings from the courts on different cases but most cases will likely be an issue of mistake and misrepresentation.

保險法の改正

( Kazuyuki Nagai )
한국금융법학회|금융법연구  8권 1호, 2011 pp. 119-142 ( 총 24 pages)
6,400
초록보기
In Japan, the rules of insurance was established in the Commercial Code since 1899. After then, Japan has become one of the most industrialized countries in the world, and its population has been progressively growing older. So, this old rules of insurance was facing some new challenges in these years, for example, how to protect an insurant. In the past several years, Japan had been particularly involved with efforts at improving its insurance law. And Japan had to find some solutions for these new challenges, and to make some innovation. In 2008, the Insurance Act in Japan was enacted with to be more contemporary writings. The main purpose in this new insurance law is to be written in an easy style for the people who repeatedly ask their insurance law to be necessary and reasonable. And then, Japan launched its new insurance law in recognizing that it is a key in a modern safe society to protect an insurant. In this paper, I would like to focus two-important topics in this new insurance law, as follows, ① what is the intention of the new insurance law, ② how the new insurance law is to protect an insurant. These innovations in the new insurance law should and will be an example that other countries follow in the future.

金融商品取引法の現狀と今後の課題

( Nobuhiko Sugiura )
한국금융법학회|금융법연구  8권 1호, 2011 pp. 143-195 ( 총 53 pages)
12,800
초록보기
This article describes a comprehensive overview about the contents of Japanese Financial Instruments and Exchange Act ("FIEA") and its future task. FIEA was enacted and promulgated in June 14, 2006 as the amendment of the Securities and Exchange Act. The amendment largely consists of the following four pillars: (ⅰ) Establishing a cross-sectional legislative framework for investor protection covering financial products with strong investment characteristics (the so-called legal framework for investor services) (ⅱ) Enhancing disclosure requirements (ⅲ) Ensuring appropriate management of self-regulatory operations by exchanges (ⅳ) Strict countermeasures against unfair trading Later, on July 31, 2007, the "Cabinet Order on the Development, etc. of Relevant Cabinet Orders for Enforcement of the Act for the Amendment of the Securities and Exchange Act, etc. and the Act for the Development, etc. of Relevant Acts for Enforcement of the Act for the Amendment of the Securities and Exchange Act, etc." were approved by the Cabinet. On the same day, cabinet orders, cabinet office ordinances, etc. concerning the Financial Instruments and Exchange Act (FIEA) were published, and the FIEA, which incorporates these amendments, took effect on September 30, 2007. The contents of the Act have been amended almost year by year, reflecting the significant changes of financial market conditions for last a few years. This article provides the details of FIEA`s restrictions to financial institutions, investor protection system and its further issues to be solved in future.

일본『은행법(銀行法)』의 개정내용 및 과제

김영완 ( Young Wan Kim )
한국금융법학회|금융법연구  8권 1호, 2011 pp. 197-246 ( 총 50 pages)
12,500
초록보기
Since the collapse of the Japanese bubble economy which began in 1989, many authors have written a lot of books on the problems of the banking system in Japan. Yet few authors have analyzed the problems concerning the Japanese Banking Law, which lead the populace to the lack of knowledge on it. Considering this, this paper introduces some critical issues of the Japanese Banking Law since its revision in 2005, and analyzes some legal problems which might possibly be raised in the practice of the law. The Japanese Banking Law was revised on a large scale in 2005 by introducing banking agencies system. In this system, instead of banks, general enterprises such as department stores, travel bureaus, hotels, convenience stores etc could enter into the banking business by getting the green light from the government. As agencies and mediators, they can practice the conclusion of the contracts in the typical service areas of the bank: deposit, loaning, and exchange transactions. On the other hand, the collateral business of the bank can be done without getting any permission from the government. However, if there are some legal restrictions in other related laws and regulations, the general enterprises that want to act as the agencies of the bank should get the permission to enter into this business, according to those laws and regulations. In connection with aforementioned legal changes, some exceptive legal clauses on the agency of the foreign banks were introduced in the Japanese Banking Law in 2008. Since then, these exceptions began to be applied correspondingly to the branches of the foreign banks. Moreover, the ban on the sales of insurance by the bank windows was lifted completely in 2007. Accordingly, the staffs of the bank are required to enhance their knowledge of the insurance law, so that they can explain the insurance-related services. Furthermore, the firewall restrictions among securities companies, banks, and insurance companies were eased in 2008. Finally, alternative dispute resolution (ADR) system was established in Japanese Banking Law, and the Japanese Bankers Association was designated as an authorized institute of the dispute resolution in 2010. The ADR is now expected to gain widespread acceptance in the practice of the banking business, alongside the settlement of the legal disputes in the existing law courts. Based on the aforementioned recent legal changes, this essay elucidates some legal problems which might probably be raised in the practice of the Japanese Banking Law.

한국 보험법의 현재와 개정논의

장덕조 ( Deok Jo Jang )
한국금융법학회|금융법연구  8권 1호, 2011 pp. 247-278 ( 총 32 pages)
7,200
초록보기
The draft Bill of Korean Insurance Contract Law as part of the Korean Commercial Law is under review of the Korean Congress. This paper is to study and analyze our draft bill presented by the Korean Government in 2008. First of all our draft bill requires a consumer to volunteer information about other insurances to insurers, and if not the insurer may cancel the insurance contract. However, it is now generally accepted that insurers should ask consumer for the information they want to know. The law needs to be updated to correspond to the realities of a mass consumer market. In this process, the drafted bill of United Kingdom would be a good model to us, and controversial issues of the bill could be a good guidance because the main problems are similar. Our Reform should enhance the reputation of the industry by reducing the scope for insurers to rely on strict legal rights that are unfairly balanced in their favour. Reform would improve confidence in the industry. In this respect this paper tries to study.

한국 은행법의 현황과 향후 과제

원동욱 ( Dong Wook Won )
한국금융법학회|금융법연구  8권 1호, 2011 pp. 279-317 ( 총 39 pages)
7,900
초록보기
The Banking Act which was enacted in 1950 was amended on May 17, 2010 in Korea in order to deregulate the standards concerning the banking industry, and for the purpose of playing a role as a far-eastern financial hub and advancing the financial industry. So the U.S. administration proposed a financial regulatory reform. And the U.S. Senate and the House of Representatives passed the Dodd-Frank Wall Street Reform and Consumer Protection Act. The UK government tries to review corporate governance in UK banks in the light of the experience of critical loss and failure throughout the banking system. The other advanced countries are in the same situation. The Korean government amended the system concerning the outside director of bank after the global economic crisis. And it amended the systems in relation to the bank, securities, insurance and tries to enact the consolidated law related to the corporate governance in the financial institutions. It is necessary to enforce the roles of board of directors in some points. But it is a important issue to consider the particularities among the bank, investment company, insurance firm and etc. We should try to watch carefully the movements of the major countries in relation to the regulation of financial institutions. If the financial standards of the major countries, especially that of U.S., are amended to be stricter and more conservative, I think we should also stand the pace of the financial regulation to protect financial consumer in Korea. But I think it is necessary to advance the banking industry relative to the scale of the Korean economy. Therefore the role of banking act is important in the Korean economy.

신탁형 집합투자기구에서 집합투자업자의 지위 및 신탁형 집합투자기구의 합병과 관련한 법적 쟁점 소고

김용재 ( Yong Jae Kim ) , 강태양 ( Tae Yang Kang )
한국금융법학회|금융법연구  8권 1호, 2011 pp. 321-355 ( 총 35 pages)
7,500
초록보기
In terms of scales and numbers, investment trust funds are much bigger and more than corporate trust funds in Korea. After analyzing the legal status of collective investment entities at the investment trust fund industries in detail, this paper considers the legal issues surrounding combinations of funds, in particular combinations of investment trust funds. This paper deals with two large issues. First, part Ⅱ does briefly consider the legal status of collective investment entities at investment trust funds. Even though same persons are not able to serve as both sponsors and trustees at investment trust funds under the current Act, relevant provisions indicate that collective investment entities as sponsors may in fact act like trustees. That is, they are sometimes subject to trustee-like duty and liability, and thus are substantially sponsors and trustees. Two theories, including legal trust-relation theory and substantive trust-relation theory, are relevant to identify and explain the rights and duties among collective investment entities and other parties. One important issue whether sole decision by a collective investment entities without the consent of beneficiaries are possible or not will be dealt with in depth. Second, part Ⅲ introduces the necessity of fund reorganizations and the complicate procedures between investment trust funds. Third, part IV analyzes the appropriateness of a legal term "merger" between investment trust funds and the necessity of introducing the acquisition of funds modeled on the U.S. law. Part V shows conclusion remarks of this paper.
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