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- 저자 : 이훈종(Lee, Hun-Jong) (검색결과 64 건)
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키코(KIKO) 통화옵션계약 체결 당시 적합성원칙과 설명의무를 위반한 경우 손해배상책임에 관한 판례평석
이훈종(Lee, Hun-Jong) 한양법학회 2014 漢陽法學 Vol.25 No.3
In a case where a bank violated the suitability principle and duty of explanation when it signed a KIKO currency option contract, a question arises to the matter of responsibility to cover damages. After considering various circumstances and in view of equal division of damages, the High Court limited Shinhan Bank"s responsibility to cover damages to thirty percent of the plaintiff company"s loss. The Supreme Court ruled that if negligence is set off for acts of taking possession, such as fraud or embezzlement, the perpetrator keeps the illegal profit in the end, in light of the legal principle which says that comparative negligence is disallowed only in cases where it is against fairness or good faith principles, the plaintiff"s appeal cannot be accepted. In this paper, we examine the validity of setting off the negligence of a corporation while it can question the suitability principle and the violation of duty of explanation. The plaintiff was aware that it is a speculative contract when he signed the KIKO currency option contract, and in a hypothetical scenario, if the exchange rate declined, the plaintiff would have gained an exchange profit or gained profit by exercising his put option. If in this case the bank and the corporation were on equal footing, it would be reasonable to calculate damages to the bank after setting off negligence of the bank. However, because banks have superior professional knowledge and resources than normal investors in dealings of over-the-counter derivatives, it is necessary to protect the normal investor who trusted and did business with the bank. Since the plaintiff violated the suitability principle and duty of explanation in this case, it committed an illegal act that is a willful violation of the suitability principle and duty of explanation. Because the victim suffered a loss due to a willful, illegal act, the perpetrator"s liability for damages was limited to thirty percent, and the bank was awarded seventy percent, the majority of the loss. It is unjust for the perpetrator to be awarded the majority of the loss when the loss was due to an willful, illegal act. Therefore, it is reasonable in this case to conclude that the bank should not be allowed to set off negligence of the corporation.
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이훈종(Lee, Hun-Jong) 한양법학회 2015 漢陽法學 Vol.26 No.3
According to the Supreme Court, an insurance solicitor does not have the right to act as a proxy for an insurer and enter into a contract, and the solicitor does not even have the right to receive notices, because an insurance solicitor is merely a person who mediates contracts for a particular insurer. When the insurance solicitor receives a notice and does not deliver it to the insurer, or when the solicitor does not explain that insured’s consent is required, the insurance contract becomes void, and the insurance company is liable for damages. However, according to the Supreme Court, when a contract is signed after an insurance agency or an insurance salesman explains in a different matter than the insurance terms, the contract is valid, and the insurance company therefore is responsible for payment in case of an insurance event. In this case, there is no negligence set-off and the policyholder can be heavily protected. However, when the insurance planner does not explain that insured’s consent is required, a negligence set-off occurs, and the policyholder cannot be heavily protected. The question arises as to whether there exists a reasonable cause to set off mistakes when the insurance planner does not explain, but to not set off mistakes when he explains in a different manner. The validity of insurance contract should be determined by applying the legal principle of fair trade protection and considering if the policyholder meets the requirement for protection. However, the protection requirement of the third party and whether the mistakes are set off differ by which specific legal principle of fair trade protection is applied. In this paper, we review the statutes of the insurance section of the Commercial Law and examine which requirements should be applied. The regulations in the insurance section of the Commercial Law on claim for insurance premium refund due to a void contract (Commercial Law Article 648), on contract termination due to breach of duty of disclosure (Commercial Law Article 651), and on cause of exemption for insurer (Commercial Law Article 659) stipulate that the policyholder “be in good faith and have no gross negligence” as a requirement for protection, and that “willful or gross negligence of the policyholder” is a cause of exemption for the insurer. Since the prohibition of reformatio in peius applies in such regulations of the insurance section (Commercial Law Article 663), the contents of insurance policies cannot be in principle more disadvantageous to the insurer than the protection requirement of the policyholder or the cause of exemption. Thus, the policyholder should be protected when there is no gross negligence.
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이훈종(Lee Hun-Jong) 성균관대학교 법학연구소 2004 성균관법학 Vol.16 No.2
One of the most interesting legal issues raised by the upcoming of the Internet is the conflict between trademarks and domain names The Supreme Court of Korea, in association with the interpretation of article 2 of the Unfair Competition Prevention and Trade Secret Protection Act, made two decisions about' an act damaging the identity of mark or the fame of another person'. In the Viagra case, a legal issue is whether an action of defendants is the tarnishment of widely recognized trademark. The Supreme Court judged that plaintiffs were winners in the case about domain names. A conclusion is reasonable. But the way to reach the conclusion is complex. In the Rolls-royce case, a legal problem is whether an action of selling domain names is the commercial uses of domain names. According to the Supreme Court, as the action is not the commercial uses of them, a defendant was a winner m the case. But I question that the every action of selling them is not the commercial uses. The Unfair Competition Prevention and Trade Secret Protection Act was amended in Jan. 20, 2004, and the act entered into force six months after the date of its promulgation. According to the amended act, the action of selling them can be the commercial uses. With this point of view, there is a need to study the case.
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이훈종(Hun-Jong Lee) 한국기업법학회 2013 企業法硏究 Vol.27 No.4
In this paper, we introduce the current law and the Supreme Court ruling regarding the underlying claim of promissory notes, and examine its validity. According to the Supreme Court of Korea, when an underlying debt becomes extinct, the debtor of promissory notes can refuse the payment of the sum on the promissory notes. It is our opinion that when the debtor issued promissory notes for the purpose of payment, he had the intention of bearing the obligations of the promissory notes, and the creditor who was issued the promissory notes can exercise his rights through the promissory notes. If we consider the objective intentions between the persons involved, it is reasonable to apply the Promissory Notes Act, and it is also reasonable to apply the period of prescription on the claim of bill, which is one of the provisions of Promissory Notes Act. Furthermore, even if the underlying claim becomes extinct, the bill creditor possesses the promissory notes, which are an evidence of a just claim. Considering the objective intentions of the persons involved at the time when the promissory notes were issued or endorsed, and in light of the intent of the Promissory Notes Act, it is reasonable for the bill holder to exercise his claim of bill when the underlying claim becomes extinct due to the prescription. According to the Supreme Court, when the extinctive prescription on the rights of the bill is completed, it is possible for the creditor, who did not take measures to stop the extinctive prescription that is necessary to preserve his rights on the bill, can exercise his underlying claim. According to such a ruling by the Supreme Court, a question arises as to whether the debtor who paid off his underlying debt can exercise his underlying claim and be reimbursed against the endorser, who is his former self. If he cannot be reimbursed, it is against fairness because he cannot be reimbursed for his underlying debt although he paid off his underlying claim. If he can get reimbursed, we run the risk of giving rise to a complicated legal relation. In light of fairness and clear solution to the legal matter on promissory notes, it is reasonable to conclude that the creditor cannot exercise his underlying claim. In this paper, we propose a tentative amendment that stipulates the following in the Promissory Notes Act. If the underlying claim is not exercised within three years, the extinctive prescription of the underlying claim against the acceptor comes to completion. The purpose of the tentative amendment is as follows. According to the current law and the Supreme Court ruling, since the period of prescription differs by various types of underlying claim, it is difficult for the creditor of the promissory notes or the debtor to clearly understand his legal rights or duties and take appropriate measures. In order to solve such a difficulty, it is necessary to standardize the exercise period of various underlying claim and fix the period of prescription. According to the Promissory Notes Act, if the right of claim on a promissory note against the acceptor of a bill and the issuer of a promissory note is not exercised within three years from the expiration date, because the extinctive prescription is completed, the prescription period of the underlying claim is too fixed to three years.
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이훈종(Lee, HunJong),이세경(Lee, SeaKyung) 한양법학회 2007 漢陽法學 Vol.20 No.-
Nowadays digital technology makes dramatic changes in life style. Man can see the shift from analog media to digital media. In the age of digital media, paper book is not the only literary text. In hypertext poetry, a poet can use graphics, color and broken lines. Hypertext poem consists of text sections that can be rearranged by a reader. It gives the reader the chance to take their own path. Therefore, hypertext poetry and print poetry are two different methods of creativity. FanPoem is made to realize hypertext poetry in Korea. FanPoem is designed to look into how the status of poets and readers have changed in the digital literature environment. On FanPoem program, readers can become poets by clicking on a phrase, and then by writing their own poems. NINANANA is a anonymous poet, who wrote a poem ‘About Death’ in cyberspace. He copied 14 phrases from other poets’ poems and expressed his citation. There is a substantial similarity between his work and them. It is not clear whether his poem is a new creative work or a unskilled work in the field of literature. Techniques of imitation - parody, pastiche and plagiarism - can be debated on his poem. Plagiarism is to copy passages of text from someone else’s work and to use them as if they were my own. Because NINANANA showed his citation, he did not plagiarize other poems. But without his citation, his poem is estimated in a different way. If NINANANA copied other poems and used them as if they were his own, he would plagiarize them.
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이훈종(Lee Hun Jong) 한양법학회 2008 漢陽法學 Vol.22 No.-
The board of directors of Daelim Tongsang decided to sell treasury shares amounting to 13% of the share capital to the largest shareholder and related parties. The Seoul Western District Court ruled that a block of treasury shares could not unilaterally sold to a specified individual without giving minority shareholders an opportunity to buy the shares. Some scholars argue that the courts’ ruling has no legal ground under the current corporate law in Korea because the disposal of treasury stocks is not deemed to be capital transaction like the stock issuance. According to the principle of fair treatment of all shares, a shareholder has rights in proportion to the number of shares owned by each shareholder. If there are special provisions to exclude the principle in the act, the shareholder shall not be entitled to his rights in proportion to the number of shares which he holds. It is under discussion that with no express provision about the principle, the board of directors has the power to sell anyone treasury stocks and to change the corporate control. While only investor can be the stockholders, those who do not make an investment in the corporation can be elected directors. The board of directors has the power and duty to manage the business of the corporation in the profit of itself and all shareholders. It is not equal that investors’ rights are invaded by directors who are not investors. Therefore, the board of directors does not have the power to change the corporate control. But if someone is a threat to the corporation or another shareholders, he need not be protected as a shareholder. To protect the interests of other shareholders, the measure of the board of directors may be permitted to the extent the means of protection are recognized as necessary and appropriate. This doctrine is applied to the transfer of corporations’ own stocks. In case of selling them, the board of directors have no power to change the corporate control. But, protecting shareholders’ proportionate rights allows the BOD to transfer treasury shares to change the corporate control within necessary and appropriate extent.
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