논문 상세보기

한국금융법학회> 금융법연구> 전자화폐의 도입에 따른 법적 과제

KCI등재

전자화폐의 도입에 따른 법적 과제

주제별 논단 : 전자금융거래법의 기본과제 ; 전자화폐의 도입에 따른 법적 과제

문종진 ( Chong Chin Mun )
  • : 한국금융법학회
  • : 금융법연구 1권1호
  • : 연속간행물
  • : 2004년 06월
  • : 79-100(22pages)
피인용수 : 13건

(자료제공: 네이버학술정보)

DOI


목차


					

키워드 보기


초록 보기


						
Many electronic payment mediums have been introduced with remarkable developments in Information and Telecommunication technologies. The use of electronic money as one of the electronic payment mediums has been astronomically increased due to its advantages in storage of value, ability to be recharged, usage in various areas, and ability to complete the transaction immediately. However, the financial transactions based on electronic money inhibit several legal problems as the existing legal system does not state on this form of transaction. This research is, therefore, to discuss the possible legal methods to regulate the problems that may arise from using electronic money. The summary of the research is as follows. First, electronic money is a payment medium which differs with credit cards, gift certificates, or electronic transfers in that it is stored with the monetary value in electronic medium such as computer, IC card, and network, and then, utilized in transaction of goods and services. Secondly, in consideration of the monetary function of electronic money as storage of value and payment medium, an issuer of electronic money should be a financial institution with public authority, which is stable and financially transparent and has attained credibility in its operation to manage and operate electronic money. In case of non-financial institution, it is proper that the issuance of electronic money is authorized under the condition that it collaborates with a financial institution. Thirdly, an issuance contract of electronic money shall be deemed as a transaction contract which offers the user with the complete right to be refunded. Fourthly, although the payment with electronic money contains similarity with the performance of obligation in light of compensating the seller of goods and services, it is appropriate to regard it as one of the substantial/onerous contracts, that is an exchange of goods, since the user has the obligation to the substitution right of seller in repayment and on collateral. Fifthly, the loss that has occurred in using the electronic money shall be shared by the issuer and the user, considering the obligation of issuer in providing credibility and stability.

UCI(KEPA)

I410-ECN-0102-2012-320-001692300

간행물정보

  • : 사회과학분야  > 법학
  • : KCI등재
  • :
  • : 연3회
  • : 1738-3706
  • :
  • : 학술지
  • : 연속간행물
  • : 2004-2020
  • : 355


저작권 안내

한국학술정보㈜의 모든 학술 자료는 각 학회 및 기관과 저작권 계약을 통해 제공하고 있습니다.

이에 본 자료를 상업적 이용, 무단 배포 등 불법적으로 이용할 시에는 저작권법 및 관계법령에 따른 책임을 질 수 있습니다.

발행기관 최신논문
| | | | 다운로드

1창간사(創刊辭)

저자 : 정찬형

발행기관 : 한국금융법학회 간행물 : 금융법연구 1권 1호 발행 연도 : 2004 페이지 : pp. 3-4 (2 pages)

다운로드

(기관인증 필요)

키워드 보기
초록보기

2전자금융거래법의 도입에 따른 법적 과제

저자 : 정경영 ( Gyung Young Jung )

발행기관 : 한국금융법학회 간행물 : 금융법연구 1권 1호 발행 연도 : 2004 페이지 : pp. 3-46 (44 pages)

다운로드

(기관인증 필요)

초록보기

The bill of Electronic Financial Transaction Law was submitted to parliament with the object of providing the electronic financial transaction with legal stabilization, which has become increasingly popular in financial circle. It includes rules of electronic fund transfer, electronic cash and pre-paid electronic payment tools etc. The bill is significant in such respects as the dividing electronic financial service provider and electronic financial service assistant, the differentiating the electronic cash form pre-paid electronic payment tools etc. But the bill has problems in some respects. First, the scope of the law is too wide because it includes the electronic insurance transaction and the electronic securities transactions but it doesn`t have special rules respecting such special transactions. Second, it doesn`t categorize logically the electronic payment system, which is developing with a great velocity, therefore it should be amended frequently after legislation. The category of with-value type, payment-order type, negotiable-instrument type in electronic payment is recommended. Third, it is focussing on the consumer based transaction and some general rules about that but such a characteristic is not the only one of electronic financial transaction. Therefore the general rules relating the consumer based transaction should be moved to specific part of the consumer protecting rules of the law. Probably Electronic Financial Transaction Law is the first legislation in the world to provide general rules to electronic financial transactions. Therefore we should not hesitate to legislate the new law and should have more time to research legal environment and problems of electronic payment system including electronic promissory note which was promulgated two months ago.

3전자금융거래법안의 입법과정

저자 : 이용준 ( Yong Joon Lee )

발행기관 : 한국금융법학회 간행물 : 금융법연구 1권 1호 발행 연도 : 2004 페이지 : pp. 49-76 (28 pages)

다운로드

(기관인증 필요)

초록보기

The paper examines the Legislative Process of Electronic Finance Transaction Bill in Korea. The report is intended to trace an official debate and studies conducted by National Assembly, government, and other stakeholders for the past years. The needs for the Electronic Finance Transaction Act result from the rapid growth of electronic finance transactions in Korea including mobile banking, internet banking, and cyber transactions. Currently available financial law system does not cover all these financial activities. More specifically, the most important reason for proposing this bill is to protect consumers who are suffering from electronic accidents or frauds. Although a similar bill was submitted by the ministry of Finance and Economy to the National Assembly, it contained some defects. Thus, this study introduces promising amendments recommended by the expert advisor of Finance and Economy Committee. It is important to note, however, that the Electronic Finance Transaction Bill was not adopted as a law in the 16th National Assembly period. Because the gap between the opposed and the proposed of the bill could not be adjusted, the decision was not made during the 16th National Assembly whether this bill can become a law or not.

4전자화폐의 도입에 따른 법적 과제

저자 : 문종진 ( Chong Chin Mun )

발행기관 : 한국금융법학회 간행물 : 금융법연구 1권 1호 발행 연도 : 2004 페이지 : pp. 79-100 (22 pages)

다운로드

(기관인증 필요)

초록보기

Many electronic payment mediums have been introduced with remarkable developments in Information and Telecommunication technologies. The use of electronic money as one of the electronic payment mediums has been astronomically increased due to its advantages in storage of value, ability to be recharged, usage in various areas, and ability to complete the transaction immediately. However, the financial transactions based on electronic money inhibit several legal problems as the existing legal system does not state on this form of transaction. This research is, therefore, to discuss the possible legal methods to regulate the problems that may arise from using electronic money. The summary of the research is as follows. First, electronic money is a payment medium which differs with credit cards, gift certificates, or electronic transfers in that it is stored with the monetary value in electronic medium such as computer, IC card, and network, and then, utilized in transaction of goods and services. Secondly, in consideration of the monetary function of electronic money as storage of value and payment medium, an issuer of electronic money should be a financial institution with public authority, which is stable and financially transparent and has attained credibility in its operation to manage and operate electronic money. In case of non-financial institution, it is proper that the issuance of electronic money is authorized under the condition that it collaborates with a financial institution. Thirdly, an issuance contract of electronic money shall be deemed as a transaction contract which offers the user with the complete right to be refunded. Fourthly, although the payment with electronic money contains similarity with the performance of obligation in light of compensating the seller of goods and services, it is appropriate to regard it as one of the substantial/onerous contracts, that is an exchange of goods, since the user has the obligation to the substitution right of seller in repayment and on collateral. Fifthly, the loss that has occurred in using the electronic money shall be shared by the issuer and the user, considering the obligation of issuer in providing credibility and stability.

5전자어음의발행및유통에관한법률의 문제점

저자 : 정찬형 ( Chan Hyung Chung )

발행기관 : 한국금융법학회 간행물 : 금융법연구 1권 1호 발행 연도 : 2004 페이지 : pp. 103-129 (27 pages)

다운로드

(기관인증 필요)

초록보기

The Act relating to Issuance and Negotiation of Electronic Promissory Note promulgated on March 22, 2004 (Law No. 7197) has many problems. Namely, the Act is against the tendency of International Uniform Laws about Bills and Checks and does not harmonize with the current Bills and Checks Act. I wonder also whether the default will be rising through the misusing of the Electronic Promissory Note. The above mentioned problems (including abolition of the Act) should be analyzed and solved absolutely before the enforcement of the Act.

6가칭 "통합금융법"추진에 대한 비판 -은행의 특수성과 시스템규제의 분리 필요성

저자 : 김용재 ( Yong Jae Kim )

발행기관 : 한국금융법학회 간행물 : 금융법연구 1권 1호 발행 연도 : 2004 페이지 : pp. 133-171 (39 pages)

다운로드

(기관인증 필요)

초록보기

Since April of 2002, the Financial Law Center at the Seoul National University (hereinafter "FLC") has strongly argued that the current financial regulation system should be reformed from the traditional institution-oriented one to the new function-oriented one, modeled on the U.K. functional regulation system inaugurated by its Financial Services and Markets Act of 2000. However, this argument has some fatal errors because the FLC does not have any deep understandings as to the current U.K. financial system and its relevant historical backgrounds. In addition, the FLC does not fully grasp the basic natures of financial regulations. Nevertheless, the FLC has made the Ministry of Finance and Economy (hereinafter "MOFE") believe that the functional re-structuring of the Korean financial system should be a norm. My paper aims to educate the FLC by identifying and correcting its fallacies, thus helping the FLC and the MOFE to restore their common senses. There have been three types of financial regulations in the financial sector worldwide, such as systemic regulation, prudential regulation, and conduct of business regulation. Either systemic or prudential regulation focus on the liquidity, solvency, riskiness and general health of individual financial institutions, thus requiring the regulation and supervision of institutions rather than of the functions performed by those institutions. In contrast, conduct of business regulation focuses on functions without regard to individual institutions. Despite some differences, all of these regulations are designed to fully protect clients instead of institutions themselves. Client protection issues in the financial sector arise for two main reasons: (1) because financial institutions where clients maintain their funds go insolvent; or (2) because financial institutions behave in conflict with the interest of clients. Systemic or prudential regulation are concerned with the former, on the other hand conduct of business regulation is related to the latter. The FLC is overbiased by the conflict of interests issue, and of course the characteristic of which is purely functional. Intentionally disregarding the former, the FLC does simply propose the physical consolidation of all the laws and regulations in the financial sector. However, such a simplified approach can be subject to a lot of criticisms, because the insolvency of a financial institution and its contagion effect to other institutions should be more significant issues in the financial regulation context. In addition, it should be noted each regulation does have its own purpose, scope and limit that can not be chemically unified at all with each other. In the traditional institution-oriented approach, regulation has been directed at financial institutions without regard to their extended business areas following to the universal banking strategy. Different regulations apply to different types of institutions, such as banks, mutual savings and loan associations, and insurance companies. This approach is still in place when considering systemic and prudential issues, which must necessarily focus on individual institutions because it is not functions but institutions that become insolvent. Only for conduct of business purpose, however, function-oriented approach may be more useful for enhancing consumer welfare especially in the securities transaction areas. The coverage of conduct of business regulation would include information disclosure, honesty and integrity, the manner in which financial advice is given to retail clients, competence requirements, and so forth. Since 2002, the FLC has published some distorted information about the recently legislative trends of some advanced financial countries, including the U.S. and Australia. My paper does not fully understand any private reason why the FLC has taken such a wrongful action. However, the MOFE should be more cautious to this fact that, until now, the U.K. is the only country adopting the consolidated financial regulation system in the world. If the European Union does not agree to the U.K. approach in the near future, nobody knows the destiny of the Financial Services and Markets Act of 2000. Any scholastic comments and advices to my paper are welcomed.

7통합금융법 제정의 문제점과 과제: 증권분야를 중심으로

저자 : 이준섭 ( Jun Seob Yi )

발행기관 : 한국금융법학회 간행물 : 금융법연구 1권 1호 발행 연도 : 2004 페이지 : pp. 173-204 (32 pages)

다운로드

(기관인증 필요)

초록보기

Recently the Ministry of Finance and Economy announced that the financial Laws should be reformed and integrated by a function oriented approach. It means that in the future the same financial activities, which are operated by financial institutions in different financial sections, would be regulated in an consolidated Law. By now the korean financial system has been regulated by various financial Laws on the basis of differently separate financial sectors. The integration work was undertaken by the Financial Law Center at the Seoul National University and its draft may be modeled after the Financial Services and Markets Act of 2000 (FSMA 2000) of U.K. The Background of this movement could be somewhat understandable, from the viewpoint that traditional institution-oriented regulation over our financial system has failed in overcoming the discrimination and asymmetry of regulating standards among the each financial laws and even in realizing the effective financial supervision. Nevertheless the conception of the government to consolidate the different laws in one must result in failure and have various problems. Above of all it may lead to make a huge legal complex, which would be combined with coreless provisions of different financial laws, as well as the FSMA 2000 does. It could be successful in physical combination, but not chemical. The desirable figure of financial legal system in the future could be seen in acknowledging and accepting the differences and diversity between the regulating factors of different financial sectors. Therefore this paper propose that our financial regulation system should maintain the ``the rule of rational discrimination`in dealing with the consolidating the financial laws. In this regard the financial laws which are regulated on the basis of same regulating philosophy can be integrated in one legal system, however the other legal sectors should remain as itself. On the other hand as another proposal a constitution of horizontal supervisory system, which can subsume the borderless financial activities and fill up the vacuum of supervision, may be a substitution for the unreasonable governmental attempt.

8통합금융법론의에 대한 비판적고찰

저자 : 장덕조 ( Deok Jo Jang )

발행기관 : 한국금융법학회 간행물 : 금융법연구 1권 1호 발행 연도 : 2004 페이지 : pp. 207-234 (28 pages)

다운로드

(기관인증 필요)

초록보기

In major markets around the world there has been a growing trend towards unification of responsibility for the regulation of banks, securities markets, and insurance companies. Countries where a unified agency has recently assumed regulatory responsibilities for all financial institutions include the United Kingdom ("U.K."), Japan, and Korea. The United Kingdom enacted the Financial Services and Markets Act 2000 (FSMA), which respond to some common challenges faced in twenty-first century financial regulation. That is, the U.K. has sought to match the unitary nature of its institutional arrangements for financial regulation with an integrated legal framework. Recently, there is an argument that we had better enact ``an integrated financial`` act such as FSMA. This article tries to review the 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. To take an ``integrated financial`` act like the FSMA would face practical and theoretical hurdles that currently appear insurmountable. 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.

9통합금융법과 보험업에 대한 규제

저자 : 김형기 ( Hyung Ki Kim )

발행기관 : 한국금융법학회 간행물 : 금융법연구 1권 1호 발행 연도 : 2004 페이지 : pp. 237-256 (20 pages)

다운로드

(기관인증 필요)

초록보기

This research contemplated the status of life insurance industry under the structure of the Integrated Financial Act, from the Korea`s point of view in regards to the fundamental issue of whether the Integrated Financial Act is necessary, after analyzing it from the angle of both UK and US life insurance market chance as well as financial system change. In UK, almost every life insurance contract is regulated by the Financial Service Act. And the enaction of 「The Financial Services and Act」in June 2000 was geared to the reorganization of the regulation authority under the situation where the self regulator`s supervision was not properly functioning in such cases as the bankruptcy of The Baring Security Co. In US, Gramm-Leach-Bliley Act permitting the convergence of bank, security and insurance was enacted in October 1999. Thus the variable product has been controlled by the Federal Securities Act on the ground that the variable product is considered as security product which makes the insured (instead of the insurer) bear the investment risk. In Korea of traditional product-dominant market situation, US model can be a better substitute which applys market conduct regulation in life insurance selling, at the same time takes a separate legal measure in some products closer to the other financial product. Besides, if we seek to integrate financial laws, it is recommended that we have a reference to those countries with financial integration, such as US and Australia, rather than UK, while taking the Korean situation into consideration.

10은행의 소유규제에 관한 법적고찰

저자 : 고동원 ( Dong Won Ko )

발행기관 : 한국금융법학회 간행물 : 금융법연구 1권 1호 발행 연도 : 2004 페이지 : pp. 261-298 (38 pages)

다운로드

(기관인증 필요)

초록보기

On April 27, 2002, the Korean Bank Act was significantly amended, which became effective on August 28, 2002. The main feature of the amendments to the Bank Act is to increase ceiling on a nationwide commercial bank ownership from 4% to 10%, although the ceiling applicable to the "non-financial business group" (which mainly consists of non-financial affiliated companies, but as is explicitly defined under the amended Bank Act) is in principle 4%, except for certain cases. However, a certain eligible person, who satisfies certain requirements as prescribed by the relevant regulations, is allowed to own more than 10% of shares with voting rights of a nationwide commercial bank on the condition of the approval of the Financial Supervisory Commission (the "FSC"). On the other hand, the ceiling on the regional commercial bank ownership is currently 15%. Like a nationwide commercial bank, a certain eligible person is permitted to own more than 15% of shares with voting rights of a regional bank with the FSC`s approval. However, the non-financial business group is in principle allowed to own up to 15% of shares with voting rights of a regional bank, except for certain cases. In this connection, this article examines the regulation of bank ownership under the 2002 amendments to the Bank Act including the Enforcement Decree thereof and the relevant supervisory regulations and rules, analyzing some problematic issues under them, and suggests some solutions on such issues. First, the 2002 amendment to the Bank Act allows a post-facto notification system in case where an investor intends to own a nationwide commercial bank`s voting shares above 4% to 10%, and the amendment to the Enforcement Decree thereof requires the investor to file a notification within five (5) ``days`` from such occurrence of the bank ownership; then, in this connection, it is suggested that (i) since it is unclear whether the ``day`` means ``business day`` or ``calendar day``, a clear guideline be necessary, and (ii) the due date for the notification be extended considering that the current five day is too short for filing the notification with heavy supplementary documents. Second, under the current Financial Holding Company Act, it is unclear whether the FSC`s approval (which is required under the Bank Act, but is currently not prescribed in the Bank Act) is required when a bank holding company intends to acquire more than 10% (15% in case of a regional bank) of shares with voting rights of a nationwide commercial bank which will become its subsidiary bank. Thus, it is suggested that (i) the Bank Act explicitly provide that the FSC`s approval would be required in such case, and (ii) such provision be also added in the current Financial Holding Company Act. Third, (i) in the definition of a non-financial business group, it is not clear whether foreign companies are included in the category of such non-financial business group, so it is suggested that the clear guideline be inserted in the Bank Act, and (ii) it is recommended that the relevant provision be amended to apply the post-facto notification requirement to such non-financial business group when they are exceptionally permitted to have the bank ownership above 4% to 10%. Fourth, under the current rules, foreign investors who intend to own more than 10% of voting shares of a nationwide commercial bank are limited to such a company which is engaged in banking, securities or insurance business or its holding company, and such requirements may be exempted when the supervisory authority deems there exist "special reasons such as resolution of insolvent banks"; in this connection, recently the supervisory authority has permitted a foreign investment fund to own more than 10% of voting shares of a nationwide commercial bank which has not been designated as an insolvent bank but deeming that there exist "special reasons"; however, it is criticized that it casts doubts about the appropriateness of such approval, and thus, it is suggested that such exempts should be repealed.

12
주제별 간행물
간행물명 수록권호

KCI등재

문화·미디어·엔터테인먼트 법(구 문화산업과 법)
14권 1호 ~ 2권 1호

KCI등재

법학연구
30권 2호 ~ 30권 2호

KCI등재

문화·미디어·엔터테인먼트 법(구 문화산업과 법)
1권 0호 ~ 5권 2호

KCI등재

법학논총
44권 1호 ~ 44권 1호

KCI등재

외법논집
44권 2호 ~ 44권 2호

KCI등재

과학기술법연구
26권 2호 ~ 26권 2호

KCI등재

국제법무
12권 1호 ~ 12권 1호

KCI등재

한국해법학회지
42권 1호 ~ 42권 1호

KCI후보

안암법학
60권 0호 ~ 60권 0호

KCI등재

상사법연구
39권 1호 ~ 39권 1호

비교법학
31권 0호 ~ 31권 0호

KCI등재

피해자학연구
28권 1호 ~ 28권 1호

KCI등재

법교육연구
15권 1호 ~ 15권 1호

KCI등재

경영법률
30권 3호 ~ 30권 3호

KCI등재

형사정책
32권 1호 ~ 32권 1호

KCI등재

세계헌법연구
26권 1호 ~ 26권 1호

KCI등재

법학연구
28권 2호 ~ 28권 2호

KCI등재

한국범죄학
14권 1호 ~ 14권 1호

KCI등재

비교형사법연구
22권 1호 ~ 22권 1호

KCI등재

환경법연구
42권 1호 ~ 42권 1호
발행기관 최신논문
자료제공: 네이버학술정보
발행기관 최신논문
자료제공: 네이버학술정보

내가 찾은 최근 검색어

최근 열람 자료

맞춤 논문

보관함

내 보관함
공유한 보관함

1:1문의

닫기