상법상 주식회사 이사의 의무와 미국법상의 충실의무

박강익(Park Kang-Ik),조성종(Jo Sung-Jong) 한국법학회 2005 법학연구 Vol.18 No.-

The director in Korean Commercial Law participates in the board meeting as a member and carries out the function of the board of directors such as the decision making on the companys management affairs and the supervision on the directors execution of the company affairs. Such directors obligations and liabilities are resulted from his status in the Commercial Law. The Law regards the relation between the company and the director as a delegate whereby the provisions to the relating to delegate in Civil Law shall be applied to the relation. The majority in Korea takes a view that the director bears the duty of due care and diligence on the corporation attaching importance to this clause, and director has has the special liability to the corporation and the third person taking into considerration his duty of due care and diligence according to the mandatory relation with the corporation and his special status in Commercial Law. And in the directors liability for the binding of capital share, the characteristic, requirement and content of the directors liability to undertake and pay share capital in case of issuance of additional share are reviewed in its order.

新株引受權과 新株引受權附社債에 관한 檢討

박강익(Kang-Ik Park) 한국기업법학회 2004 企業法硏究 Vol.18 No.2

The characteristic of the system of a modem business corporation is the separation of management from ownership, so the powers of a corporation has transited from the general meeting into the board of directors And in a modem corporation the shareholder has divided into majority having the right to appoint or dismiss the directors and officials, and minority isolated from corporate managing.<br/> The disputes resulting from denying or limiting the preemptive rights show these problems definitely. Namely according to the ways of denying or limiting the rights, the relative interests of the minority can be violated by changing the existing relation of the corporate governing or the distribution ratio in a corporation, and on the other hand corporate interests can be violated by prohibiting a corporation from denying or limiting the rights in that the corporation can not use a proper way of issuing such as a private offering or a public offering, though it is clear that one of these of ways makes the corporation get more profits than rights offering.

Cyber 증권시장의 법적 규제에 관한 연구

박강익(Park Kang-Ik) 한국법학회 2007 법학연구 Vol.25 No.-

개인용 컴퓨터의 보급과 정보통신기술의 발달은 증권업의 경쟁을 가속화 하고 투자자의 다양한 욕구변화와 함께 유가증권의 발행인, 중개기관, 시장운영자 등은 컴퓨터 통신망 속의 가상공간 속에서 자신만의 노하우를 개발ㆍ적용함으로써 시장에서 경쟁력을 향상시키는데 전력을 다하고 있다. 많은 투자자들은 기존의 객장을 찾아 증권을 매매하는 전통적 인 방식에서 벗어나 개인용 컴퓨터 및 이동전화기 등의 전자매체를 이용하여 인적인 접촉이 없이 직접 거래하는 가상공간(Cyber Space)에서의 증권거래 방식이 대세를 이루고 있다. 그러나 웹사이트를 이용하여 유가증권을 발행하거나, 홈페이지 상에서 하이퍼링크를 설정하여 정보를 제공하는 경우, 인터넷 게시판, 대체거래시스템, 사이버상의 불공정거래 등 사이버 증권거래에서 빈번이 발생하는 문제를 해결하기 위한 관련 법률의 보완 및 제도적 검토와 더불어 사이버증권시장의 안정적인 시스템의 구축이 뒷받침되어야 한다. Securities Market have marked a significant role in national economy by helping capital raising for company and providing individual investors with opportunities to get income or money. Recent revolution in information technology are changing the nature of brokerage business. Lately the securities exchange in cyberspace by use of electronic methods has been an material part of the korean securities market. The cyber securities market in Korea has grown rapidly and the number of investors has increased greatly. But there have come unforeseen problems emering from the cyber trading in enforcement of the current securities exchange law. For example internet has been abused as a means of misrepresentation relating to information delivery and cyber exchange has : been more actively used for securities fraud including manipulation in the securities market and cyber trading has been a surge in investors' complaints to system outage and untruthful information provided to investors on the internet web site. Thus the investors participating in cyber exchange need to be protected more sufficiently and reasonably than in the real market. Therefore it is necessary to improve the regulation system for the protection of investors' interests and running growth of cyber securities exchange.

전자지급결제제도에 관한 연구

박강익(Park Kang-Ik) 한국법학회 2006 법학연구 Vol.23 No.-

오래된 역사만큼이나 지급결제의 수단은 시대에 따라 다양한 모습으로 변모 발전하였다. 가장 범용성이 있고 본원적인 지급결제의 수단은 역시 화폐라 불리는 현금이라 할 수 있다. 그러나 현금은 모든 거래 활동에 효율적으로 이용될 수 없다는 점으로 인하여 현금의 한계와 단점을 보완하는 각종 비현금 지급결제수단이 함께 통용되어 왔다. 오늘날 사회는 고도의 정보화사회로 컴퓨터, 통신네트워크 등 정보통신기술의 급속한 발전으로 지급결제수단에도 영향을 미쳐 전자적 지급 결제수단의 발전을 촉진하였다. 이렇게 변화된 지급결제 환경의 변화와 수요에 부합하고자 무선통신, 인터넷, IC칩 등 다양한 형태의 정보통신기술과 결합한 지급 결제서비스가 온라인 시장에 적용되고 있는 등 변화를 거듭하고 있다. As many people used the internet by computer and communication, they can get a lot of useful information and can keep in touch with someone far apart. Among these circumstances, especially we need to notice about the electronic commerce, the electronic payment and settlement system. It is electronic payment and settlement service that has become a foundation of electronic business transaction by internet and makes it available. The activation of the electronic business has promoted the concern of electronic payment and settlement service, It is needless to say that the service can be activated by technical level, the securities, the protection of data, recovery of error, the safety, the extension of usage, the flexibility and convenience. Therefore, in this thesis would refer to contracting parties in the electronic payment and settlement by electronic commerce transactions and then would check the legal problems about the electronic cash, electronic check and credit card in on-line as well as would study on legislation.

告知義務에 관한 考察

박수영(Park Soo-Young),박강익(Park Kang-Ik) 한국법학회 2006 법학연구 Vol.24 No.-

보험계약은 일종의 사행계약으로 선의성이 요구되며, 보험법은 보험계약자에게 위험에 관한 진실한 정보를 제공할 의무인 고지의무를 부과하고 있다. 이러한 고지의무제도는 보험계약의 특성에서 오는 특유한 제도이므로 다음과 같은 개선방안이 요구된다. 고지의무가 법률상의 의무라 하더라도 계약체결시 보험계약자에게 고지의무의 부담사실을 명백히 설명하는 것이 바람직할 것이며, 보험가입자보호의 측면에서 보험모집인의 고지수령권을 인정하여야 한다. 또한 질문표의 질문사항에 포함되어있지 않는 사항도 고지의무의 대상이 되는 중요한 사항일 수 있으며, 해지권의 포기는 보험계약이 위험단체를 전제로 하는 다수계약인 점에서 보험단체의 이익과 관련하여 고려하여야 하고, 모든 고지의무위반으로 인한 보험자의 해지권을 포괄적으로 미리 포기하는 합의는 선량한 풍속 기타 사회질서에 반하므로 무효라고 할 것이다. An insurance contract is a 'contract of Uberrima fides (utmost good faith)', which means that all parties to the contract are under a strict duty to deal fully and frankly with each other. As a result, the potential parties to it are bound to volunteer to each other before the contract is concluded information which is material. Accordingly, the insurer must specify, deliver and explain general clause to the insured, and the insured (an applicant for insurance) must disclose all facts that are 'material' (or relevant) to the risk for which they are seeking cover, Prior to the conclusion of the contract. 'Non-disclosure (or misrepresentation)' refers to the situation where a insured fails to reveal a relevant fact when applying for an insurance contract. It is widely recognised that in some situations involving non-disclosure, applying the strict legal position can result in an unduly harsh outcome for the insured. A 'material' fact is one which would influence an underwriter when they were deciding whether to accept the risk, and the terms and conditions that should apply. If a insured fails to disclose (or misrepresents) a material fact and this induces the insurer to accept the proposed risk, the legal remedy is to 'avoid' the policy. This means the insurer is entitled to treat the policy as though it never existed. Unless fraud is involved, the insurer will normally return the premium and will not pay out on any claim made under the policy.

금융분쟁해결제도의 문제점과 개선방안

나윤수(Rha, Yoon-SOO),박강익(Park Kang-Ik),박홍진(Park Hong-Jin),이경민(Lee Kyung-Min) 원광대학교 법학연구소 2007 圓光法學 Vol.23 No.1

Financial market is where supply and demand sides trade capital through brokerage. Traditional indirect financial market such as banks and insurers along with direct financial market including securities firms serve as a channel providing capital to corporations and is actually playing a very important role in terms of building the basis for the bullish economy. For the financial market to play its economic functions properly per se provision of long term corporate capital, the investors who provide the capital and a market participant should be protected in a more transparent market environment. Therefore, it is crucial to have and run a system to resolve disputes between market participants such as financial organizations and investors quickly and fairly. Given that the complexity of the financial trade, asymmetry of information, and lack of professional training in the part of investors put them in relative disadvantage against the financial organizations, appropriate dispute resolution measures protecting the market participants such as investors while providing professional information are needed should take place. Although legal procedure has been well established as a means to resolve disputes, the issues of relevant heavy cost and lengthy time led many countries across the world to adopt Alternative Dispute Resolution: ADR which can replace the legal system. There are various forms of ADR which has been widely acknowledged: advice, negotiation, settlement, mediation, conciliation, arbitration. The standard in this process is how much a third party intervention is allowed and how strong the binding power is. Those arbitration system have replaced the legal systems as a way to solve disputes in a wide range of areas in many financially advanced countries such as the US and UK. In Korea conciliation and arbitration are favored in terms to financial dispute. The arbitration regulating legislation was stipulated in 1966. Today most of the arbitration cases are dealt with in the Korean Commercial Arbitration Board. However, arbitration as a means of securities related dispute has not been actively sought after. When it comes to securities related dispute, Financial Supervisory Service, Korea Consumer Agency, Korea Stock Exchange, and The Korea Securities Dealers Association handle the arbitration in compliance with legislation for financial watchdog, consumer protection, and securities trade. Below, I will talk more about the current status of the Financial Dispute Resolution, along with the problems and the measures for improvement.

사외이사제도의 문제점 및 개선방안

박강익 圓光大學校 法學硏究所 2005 法學硏究 Vol.21 No.1

Korean Commercial Law was revised three times after 1991's economic crisis and its subsidiary law was made or revised. We continue to change the corporate governance for transparency, liability of business management and to enhance the utility. Among them, it is the most conspicuous that the board of directors was changed in the supervision and policy decision function of management. The board of directors system is based on the assumption that ownership and management should be separated. As a result, the competence of the general meeting of shareholders was decreased and Korean Commercial Law conceded the powerful executive competence to the board of directors. The directors, as a member of the board of directors, makes a decision on the business and affairs of their corporate and supervises the execution of corporate affairs. And as a representative director, he manages the corporate business or affairs. In this paper, I will examine why the board of directors on Commercial Law could not play its function, and the established basis of outside directors that accepted to strengthen its function. And then, I propose improvement measures in order to outside director system in Commercial Law.

自動車保險의 法律關係

朴康翼 圓光大學校大學院 1996 論文集 Vol.17 No.-

The first car was invented by Karl Benz of Germany in 1878. The history of car insurance is rather short. In 1898, car insurance was created. It was established under the name of Car & Insurance Corporation, a specialist in car insurance. Nowadays, car insurance has developed more and more and has became the center of New branch of insurance. Car insurance is a necessity because of the risk guranteed when a person possess, uses, manages a car. These days, cars have become essential to economic development and elevation of the standard of living. In situation like this, mordem people are exposed to car accidents, so we should consider a counter measure to danger. A car accident happens suddenly which raises social problems because one needs to deal with the problems between the assailant and the injured. There, car insurance is a reasonable system which can reduce liability of the assailant and adequate compensation the losses of injured. At present, our country has become a population of car; but its a big problem for our people in that we do not have adquate roads and lack common sense about driving. So, car insurance always operates in the red. Therefore, we should view the organization of car insurance in order to overcome the problems, and we have to be concerned about decreasing car accidents. The car insurance companies should reduce the insurance fee for persons who hcve no accidents and develop the car insurance system to protect the insured. Our counry, needs to improve the car insurance system with regard to increasing payment for properly medical claims to prevent unreasonable increases in the accident rate and fees. The Traffic Accident Processing Special Laws have to indemnify the persons who have either limited insurance or unlimited insurance without distinction, also delinquent insureds must not be permitted to buy any insurance. One method of preventing delinquent insureds is to set very high insurance fees. This will be a working to them and may bring the delinquent to their senses.

회사의 법인격 남용과 그 규제

박강익 圓光大學校 法學硏究所 2006 法學硏究 Vol.22 No.1

The business corporations have been the most important factor in the development of the modem capitalistic economy. Corporate institution has various advantage which are not found in case of enterprises by individuals; easiness in concentration of large capital, corporate efforts and distribution of risk of loss. In other to assure them legally, the Company Law provides independent personality to company and dependent upon the kind of company, the privilege of limited liability is given to members of it. However, such devices embrace at the same time the danger of being misused, and it is especially so in case of corporation. Generally a corporation is a separate and distinct entity from those who compose it. This separate entity concept can be a useful tool for those who employ it as a cover or a cloak for improper purposes. Thus every legal system which gives a separate personality to a corporation has some means to solve such an abuse. The corporate device is a privilege to carry on a business with limited liability and separate entity. The privilege is sanctioned only so long as the corporation functions within limits set by the law. The abuse of the corporate form by incorporating inadequately capitalized corporations is much lamented in our country. Those practices should be knocked down once and for all.

사이버증권거래에 관한 연구

박강익 又石大學校 法律行政硏究所 2000 法律行政硏究 Vol.1 No.-