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The Role of Self-Regulation in Supporting Korea`s Securities Markets
( Bernard S. Black ) 서울대학교 아시아태평양법연구소 2003 Journal of Korean Law Vol.3 No.1
This short article was initially prepared for a December 2001 conference sponsored by the Korea Stock Exchange (KSE). It reviews the scope of self-regulation by stock exchanges and offers suggestions for the main Korean stock exchanges, the KSE and the KOSDAQ. I argue that self-regulation should be understood broadly to include regulation of listed companies through quality standards, disclosure standards, and governance rules; regulation of broker-dealers; regulation of trading; and, perhaps most basic, regulation of the exchange``s organizational structure. The most important elements of self-regulation are regulation of listed companies and the exchange``s organizational structure (which impacts its incentives to engage in other forms of self-regulation). To compete for trading in shares of cross-listed Korean companies, Korea will need both legislative change and stronger self-regulation of listed companies. The government should amend the Securities Transaction Law to repeal the securities transaction tax and permit demutualization of the KSE and the KOSDAQ. The government and the stock exchanges must upgrade both the on-the-ground reality (which will lag behind changes in formal rules) and investor perception (which will lag behind the on-the-ground reality) of Korea``s disclosure and corporate governance regime. Stronger listing standards can be important components of that investor protection effort.
Shareholder Suits and Outside Director Liability: The Case of Korea
( Bernard Black ),( Brian Cheffins ),( Michael Klausner ) 서울대학교 법학연구소 2011 Journal of Korean Law Vol.10 No.2
Reforms to Korean corporate and securities law carried out in the wake of the 1997-1998 East Asian financial crisis included a mandate that boards include a minimum number of outside directors and facilitation of shareholder lawsuits against board members for damages. The strategy of imposing liability risk on directors (both inside and outside) appeared to follow U.S. practice. In the U.S., outside directors of public companies are often sued but rarely face personal, or “out-of-pocket,” liability unless they engage in self-dealing. Instead, damages and legal fees are paid by the company, directors’ and officers’ (D&O) insurance, or both. Outside directors of public companies in Australia, Canada, Britain, France, Germany, and Japan similarly rarely face out-of-pocket liability due to shareholder lawsuits. Moreover, when events have occurred in these countries that increase the risk of out-of-pocket liability, there is a strong tendency for political or market forces to reestablish a non-zero but minimal level of risk for actions that do not involve self-dealing. Korea’s experience seems to be similar. We argue that Korea could go somewhat further to encourage litigation against outside directors of public companies, but should not open the way for “out of pocket” liability to become commonplace.