주제별 논단 : 연구논문 ; 대출자책임소송과 그 시사점에 관한 연구

도제문 ( Jae Moon Do ) 한국금융법학회 2014 金融法硏究 Vol.11 No.2

The purpose of this article is to call attention to financial institutions about the lender liability claims in a social atmosphere to stress the consumer protection. Lender Liability means US legal doctrine under which a lending bank may be held liable for a borrower``s financial losses that are directly or indirectly related to the bank``s actions. A bank is potentially liable for loans made in bad faith, refusing to advance new loans or credit extensions after promising to do so, taking a controlling interest in the borrower``s business, or foreclosing on borrower``s assets without proper procedure and notification. Lender liability is an umbrella term for a lender``s actual or potential liability to its borrower or third parties for claims relating to a loan. Almost every lender liability lawsuit contains the allegation that the lender had a good faith fiduciary relationship and that the lender has otherwise violated a duty to act in good faith and with fair dealing. In Korea, lender liability claims are still rare and unusual. But bankers should not misunderstand that they are always exempted from liability if they didn``t violate rules and contracts concerned. A yardstick of judgement to evaluate weather or not the rules or contracts are violated, when a borrower suffered damage by the inappropriate actions of bankers, is subject to change especially in the leaning toward consumer protection. Bankers should not only keep from inappropriate actions, such as misrepresentation, interferences, breach of contract and breach of duty of good faith, but also avoid to establish unnecessary special relations with borrowers to prevent allegation of fiduciary duty to customers when lender liability claims raised.

만기백지어음의 보충권에 관한 연구 (판례연구)

도제문 ( Jae Moon Do ) 고려대학교 법학연구원 2006 고려법학 Vol.0 No.46

은행의 겸업제도와 그 업무범위를 정하는 법령 등에 관한 검토

도제문 ( Jae Moon Do ) 고려대학교 법학연구원 2005 고려법학 Vol.45 No.-

주제별 논단 : 지급결제제도의 법적 문제점과 과제 ; 지급결제서비스의 주체는 누구인가?

도제문 ( Jae Moon Do ) 한국금융법학회 2006 金融法硏究 Vol.3 No.1

Although the payment system has hitherto been recognized as an exclusive domain of banking companies, the government reportedly plans to help the securities industry to break down the wall of this domain for the purpose of promoting the level of customer service. The entry of the securities industry into the payment system or permission to payment function for security account is unprecedented in the world. The problem of payment system is not subject to public regulation by the policy or legislative powers. The payment system should be designed by all participants and administrated by private autonomy. Entry of securities industry into the payment system can be resolved by contractual agreement. But this subject arouses a few problems as follows. The understanding that banking companies are exclusively in charge of the payment system is derived from the fact that banks are the unique institutions in charge of deposit accounts. The government lays various kinds of prudential regulation against banks to protect deposited currency and to reach the goal of financial stability. Typical among them is the regulation on the scope of the banking business. So to grant permission for the securities industry to enter into the payments system while restricting access to banking companies in business area is unfair. The principal is usually not guaranteed in securities accounts. When securities accounts are used as the means for payment, that can bring about system risk. That is why banking companies are exclusively in charge of the payment system. Should the entry of the securities industry into the payment system be permitted in spite of these reasons, the following conditions should be resolved. When securities accounts are used as payment transaction accounts, they should be considered as bank accounts and the institution dealing with these accounts should be supervised as banks. The payment system is subject to oversight from the central bank. The main purpose is to prevent and resolve payment risk to maintain the stability and efficiency of payment system. Accordingly, when the securities industry is permitted to participate in the payment system and securities accounts are considered to be bank accounts, the securities industry should be subjected to oversight from the central bank. The topic of universal banking needs to be discussed in more depth. Because the cause of restriction in business area of banking industry can be recognized as the price of exclusive charge of bank accounts and payment system.

어음수표법상 쟁점에 대한 연구 -“어음수표의 수수가 원인관계에 미치는 영향과 손익형량론의 도입검토”를 중심으로-

도제문 ( Jae Moon Do ) 단국대학교 법학연구소 2013 법학논총 Vol.37 No.4

Generally, there are substantial reasons or purposes when drafts or checks are delivered. These basic relations are called the underlying transaction of drafts or checks. Controversies and theories related to the basic transactions not belong to the field of draft or check act but to the field of civil law. Though affairs of negotiable instruments exist as abstract legal relation separated from substantial transactions, the close relation between the two sides is undeniable owing to the facts that the former is no more than the tools of the latter. In some cases the former effect to the latter, in other cases are in the reverse order by the fact that the former is a tool and the latter is a purpose. If a draft or check is delivered to the effect of the payment of substantial liabilities, what kind of effect arouses to the existence of substantial liabilities? When a debtor delivers a draft or a check in relation to the payment of the underlying transaction, there are three types. If a draft is delivered, it is presumed as a conditional payment. when a check is delivered, it is presumed as a guaranty or a security. Is a cashiers check delivered, its regarded as a payment in complete satisfaction. When a draft or a check is delivered as a conditional payment or as a security, the liability and the underlying debts are exist together. If a cashiers check is delivered in complete satisfaction, the underlying debts becomes extinct according to the theory of payment in substitutes. In this article, I want introduce a opinion about how the delivery of a draft can affect on the underlying liabilities. To begin with, theories and cases about the delivery and the effect on payment of the underlying debts are introduced. Subsequently, the function of drafts and checks in payment system is researched. Finally I want introduce the theory of balance of profit and lass between the person concerned in drafts and checks. In relation to the theory, I tried to verify the propriety of the conclusions in a few cases introduced in light of the theory of profit and loss. I thought that when a draft or a check is delivered in relation to the payment of the underlying liabilities, to recognize the purpose of the delivery should be decided not by the kinds of tools but by the intention of the person concerned in the draft or check. In case the recognition of the intention of the person concerned in draft is not available, the delivery of the draft or check should be presumed as a conditional payment. Because drafts or checks are tools of payment. I thought also that when a draft or a check is delivered in relation to the payment of the underlying liabilities, to recognize the purpose of the delivery among as a conditional payment or as a guaranty and as a complete satisfaction, the function of a draft or a check should be considered prior to the intention of the person concerned in draft or check. The function of a draft or a check basically not for a tool of clearing but for a tool of payment. Consequently, when a draft or check is delivered for any purpose, it is unreasonable to be considered as payment in complete satisfaction only by the circumstances or the intentions regardless of its function as a tool of payment. Because a draft or check is regarded to be delivered to pay in complete satisfaction, the underlying debt becomes extinct by the effect of payment in substitutes. The extinction of underlying debts leads to the loss of securities attached on it in case of no particular contracts. It can be considered too dangerous to the creditor who would be satisfied only by the negotiable instrument without any guarantees. In this article, I would like to propose the theory of profit and loss. The theory is based upon the hypotheses that the profit and loss should be kept substantial balance or equilibrium finally without exception among the persons concerned in life of a draft or check. Issuers, drawers, holders in due or not, endorsers, even forgers can not be exceptional. A draft or check is nothing but a tool of payment to try to settle the underlying liabilities. The persons concerned in a draft or check, including issuers, drawers, holders in due or not, endorsers, use the drafts or checks to solve or collect the underlying liabilities. The hypothesis that the profits and losses of the persons in civil or commercial transactions should be kept balances is necessarily applicable to the hypothsis that the profits and losses of the persons concerned in drafts or checks should be finally kept balances. The persons concerned in drafts or checks should give and take equal values in substantial transactions. If one of those concerned in drafts or checks takes profit without equivalent prices or pays the cost without proportionate profit, that means the transaction is not resolved finally. Under the theory of profit and loss, the purpose of delivery of drafts or checks is not so much momentous as the final balance of profit and loss substantially.

선의, 악의, 중과실 및 해의(害意)에 대한 정합적 해석의 시도

도제문 ( Jae Moon Do ) 한국금융법학회 2014 金融法硏究 Vol.11 No.3

The purpose of this article is to research the meaning of a third personacting in good faith in the civil act and the commercial act, bad faith or by grossnegligence and the knowingly to the detriment of the debtor in the act of billsof exchange and promissory notes. In this article, the author brings questionsinto the prevalent theories and judicial precedents which are lack of integrity andconsistency according to the characters and purposes of the civil act, commercialact and act of bills of exchange and promissory notes. The author tries tosuggest that the meanings of “a third person acting in good faith” in the civil actand commercial act and “bad faith or by gross negligence” and “awaring that itwould harm the debtor” in act of bills of exchange and promissory notes shouldbe interpreted and applied consistently and systematically according to thepurposes or characters of the laws related. In conclusion the scope ofprotection in behalf of the third persons in commercial trade should be widerthan that of those in civil trade. And the holder of drafts or checks who isunaware of the detriment of the debtor should be more widely protected thanthe third parties in the civil or commercial trades.

金融去來(김융거래)와 商事留置權(상사유치권)

도제문 ( Jae Moon Do ) 한국상사판례학회 2013 상사판례연구 Vol.26 No.4

Civil act provides for the right of retention as follows : If the possessor of a thing or valuable instruments belonging to another person has any claim arising, in respect of such property or instruments and if payment of the claim is due, he may retain possession of the thing or instruments until the claim is satisfied. On the other hand, commercial act provides for the right of retention between merchants. Right of Retention is statutory real right granted by way of security regardless of the purpose of parties concerned when the necessary conditions fulfilled. Despite their differences in terminology and application, there are a number of similarities between liens Korea and other countries. This lien granted by law is only based upon the principle of equity or fairness. Though the right of detention based upon equity is introduced in many countries since Roman law, the details are somewhat different in each countries. This right of detention is known to be originated in exceptio doli of the Roman law. The lien between merchants granted by commercial law is different in its purpose and function from the civil lien which is based upon equity originated in Roman law. The merchant lien is introduced in purpose of the speediness of commercial transactions and avoidance of the annoying of a particular securities originated in commercial practice of medieval Italian cities. Commercial law provides merchant lien in purpose of speediness and convenience of securities in commercial transactions, because the civil lien is not fit for the commercial securities due to the condition of the relevance between liabilities and the objectives. Consequently, this merchant lien is quite related to the banking transactions. Type of charge that gives a bank automatic claim over a borrower`s property or assets that come in bank`s possession in the normal course of its business. The bank has the right to seize and sell the defaulting borrower`s property in its possession, after giving a reasonable notice but without going through the foreclosure procedure. Enforcement of a banker`s lien, however, may depend on the type of the property and the reason it was handed over to (or came in possession of) the bank. Movable estate, negotiable securities and promissory notes may be claimed under this lien. But it is not applicable where the borrower`s property was handed over to the bank for a specific purpose, such as for safe custody (as in the bank`s safe deposit boxes) or for sale through a department of the bank. In this article, I tried to show the relation between the merchant lien and banking transactions, to comment to the some judicial precedents related.

휴면계좌(休眠計座) 처리(處理)의 문제점(問題點)과 입법론적(立法論的) 제안(提案)

도제문 ( Jae Moon Do ) 한국상사판례학회 2006 상사판례연구 Vol.19 No.3

발행일(發行日)이 백지(白地)인 수표(手票)의 보충권(補充權)

도제문 ( Jae Moon Do ) 한국상사판례학회 2006 상사판례연구 Vol.19 No.2

주제별 논단 : 기타 ; 김융실무상(金融實務上) 공동저당(共同抵當)에 대한 일고(一考)

都濟文 ( Jae Moon Do ) 한국금융법학회 2013 金融法硏究 Vol.10 No.2

Civil Act provides for joint mortgages and dividend of proceeds thereof, subrogation of mortgagee next in priority as follows. Where two or more immovables are mortgaged to secure one claim and the proceeds of the auction are to be applied simultaneously to its satisfaction, the burdens in respect of the obligation shall be divided in proportion to the proceeds of the auction sale of each immovable. If the proceeds of the auction sale of part of the immovables mentioned in the preceding paragraph are to be applied, the mortgagee may obtain full satisfaction of his claim out of the same; in such case the mortgagee next in priority may exercise the right of the prior mortgages by subrogation to the extent of the amount which the latter would have received out of other immovables in accordance with the provisions of the preceding paragraph. In relation to the joint mortgages in financial business, the major problem lies in the appropriate modulation among the persons concerned including borrowers, owners of properties secured for joint mortgages and the mortgagee next in priority whose benefits are got complicated. But civil law can not provide apparent solution to the collision between the mortgagee next in priority and the person who gave his own property as security. But although theoretical arguments exist, bankers should make transactions according to the court`s decision. In future, when the decisions are changed, bankers should do his job according to the changed decisions. Except for special cases focused on social and political considerations, unexpected benefits or losses for either sides of a trade should not be allowed in financial transactions. Especially in banking business, bankers and borrowers can avoid any accidental losses provided that they always transact in accordance with the court`s precedents.