金融實務上 共同抵當에 대한 一考

도제문 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 moreimmovables are mortgaged to secure one claim and the proceeds of the auctionare to be applied simultaneously to its satisfaction, the burdens in respect of theobligation shall be divided in proportion to the proceeds of the auction sale ofeach immovable. If the proceeds of the auction sale of part of the immovables mentionedin the preceding paragraph are to be applied, the mortgagee may obtain fullsatisfaction of his claim out of the same; in such case the mortgagee next inpriority may exercise the right of the prior mortgages by subrogation to theextent of the amount which the latter would have received out of otherimmovables in accordance with the provisions of the preceding paragraph. In relation to the joint mortgages in financial business, the majorproblem lies in the appropriate modulation among the persons concernedincluding borrowers, owners of properties secured for joint mortgages and themortgagee next in priority whose benefits are got complicated. But civil lawcan not provide apparent solution to the collision between the mortgagee next in priority and the person who gave his own property as security. But althoughtheoretical arguments exist, bankers should make transactions according to thecourt's decision. In future, when the decisions are changed, bankers should dohis 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 allowedin financial transactions. Especially in banking business, bankers and borrowerscan avoid any accidental losses provided that they always transact in accordancewith the court's precedents.

지급결제서비스의 주체는 누구인가?

도제문 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.

대출자책임소송과 그 시사점에 관한 연구

도제문 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.

은행 공공성(公共性)의 법제화에 관한 연구

도제문 한국금융법학회 2015 金融法硏究 Vol.12 No.3

The purpose of this article is to add an opinion to the variable concepts of the public nature of commercial bank and to suggest its legislation into the banking act. Generally the concept of public nature is known as the public welfare although its contents are very vague and various. Commercial banks are originally and practically profit making corporation taking serious views of share holders interests. But the public nature of banks should be considered in maintaining its credibility, securing the protection of depositors, and facilitating smooth functioning of financial services, to ensure sound and appropriate operations of the business of banks, thereby contributing to the sound development of the national economy. The public Nature of the commercial banks and its autonomy to act business freely without restriction are not necessarily contradictory or conflicting. Writer of this article tries to tell the public nature in banking business from that of bank institution, because the institutional public nature can not be ignored while their business operations have a public nature in exercising their financial functions. The writer thinks the public nature of bank is the cost of its licence which allows to act banking business freely and without certain restriction targeting general public, there by creating credits. The writer also suggests the legislation of public nature of bank into the banking act so as to confirm the social responsibilities to consider the public welfare. 본고에서는 은행 공공성의 근거를 기존의 견해들과는 좀 다른 시각에서보고자 하였으며, 은행법 중 은행의 공공의무 중시를 구체적으로 법제화할 것을 제안하는 데 목적이 있다. 논문의 구성은 Ⅱ에서 공공성에 대한 일반적· 이론적 논의를 간단히 살펴본 다음, Ⅲ에서 은행 공공성에 대한 다양한 견해들을 소개하고, 이어서 견해가 다양한 이유와 현행 은행법의 문제점에 대한사견을 밝히고자 한다. Ⅳ에서는 은행의 공공성 지향의무를 입법화하되 가능한 한 구체적으로 법제화할 것을 제안하고자 한다. 본고의 요지는 현행 은행법 중 은행의 공공적 지향성을 이념적으로 제시하는 목적규정을 은행업무의공공성과 은행기관의 공공성으로 구분하면서, 은행기관의 공공성을 보다 구체적으로 법제화할 것을 제안하는 데 중점을 둔다. 애매모호하고 추상적인 개념으로 재량권이 없는 은행의 경영진에게 은행의 법적인 의무와 책임을 강조할수 없다. 따라서 은행의 공익적 성격을 보다 구체적으로 표현할 필요가 있다고 본 것이다.

銀行制度와 그 업무영역규제에 대한 비교법적 고찰

도제문 釜山外國語大學校 比較法硏究所 2005 比較法學 Vol.16 No.-

Banks, as representative financial institutions, have performed core functions in the korean financial market. Under the Banking Act of Korea, banks are defined as all persons which regularly and systematically engage in banking business. Here, banking business means the business of lending funds acquired through the assumption of obligations to the public by way of accepting deposits or issuing securities or other evidences of indebtedness. Given the importance of either bank functions in the overall economy or public-oriented characteristics, banks are subject to a lot of severe regulations, such as entry barriers and business hurdles. Furthermore, banks are not able to exit easily without any formal authorization from the Financial Supervisory Commission. From the cradle to the grave, thus, banks are regulated more heavily than other commercial finns. For instance, minimum capital regulations, approval regulations during the authorization process, bank-ownership regulations, corporate governance regulations, regulations concerning business activities as well as core business areas, merger and acquisition regulations, dissolution and exit regulations, and etc. Among them, this paper especially focuses on the regulations of business spheres. Currently there are two types of commercial banks in the world. Specialized banks are conducting banking businesses only without seeking to expand those traditional business areas. In contrast, universal banks are directly engaging in many types of nonbanking financial activities, such as securities and insurance activities based on their own strategies. Thus, universal banks are integrating financial businesses in the form of either financial holding companies or bank subsidiaries. This paper compares the different banking systems of financially advanced countries, including the U.S., ]apan and Germany. It should be noted that al1 these countries seem to converge on a single model by adopting the universal banking system. For instance, the U.S. recently made a drastic, surprising banking reform in 1999. That is, it repealed the Glass-Steagall Act which had maintained specialized banking system in the U.S. for more than 60 years since early 1930s after the Great Depression. Instead, it enacted the Financial Services Modenization Act of 1999, thereby promising for the first time to allow subsidiaries of a financial holding company to engage in al1 the financial activities in nature. Historically, Korea had maintained the specialized banking system modeled on the pre-1999 U.S. system. Now, however, this approach can not be a norm in the current financial market. The deregulation and dis-intermediation processes, the globalization of financial markets, the emergence of new competitors, and the introduction and application of new information technologies all around the world will continuously have led to profound changes in the Korean banking industry. Thus, the introduction of the successful universal banking system in Korea will be a norm in the near future.

은행대리업의 도입에 관한 제언

도제문 한국금융법학회 2015 金融法硏究 Vol.12 No.2

본 논문의 목적은 은행대리업제도의 도입을 제안하는 데 있다. 논문의 구성은 Ⅱ에서 우리상법상 대리상의 개념과 기능을 살펴보고, 이어 Ⅲ에서는 역사가 오래된 미국의 은행대리업제도를, Ⅳ에서는 우리나라와 금융제도가 가장 근접한 일본의 은행대리업제도를 소개하고, Ⅴ와 Ⅵ에서는 은행대리업제도의 도입시 그 기대효과와 유의사항을 살펴보고 글을 맺는다. The purpose of this article is to suggest the introduction of bank agent service system to Korea. "Bank Agency Service" means a business performing any of the following acts such as (i) an agent or intermediary for conclusion of a contract on acceptance of deposits or installment savings, etc. ; (ii) an agent or intermediary for conclusion of a contract on loans of funds or discounting of bills ; or (iii) an agent or intermediary for conclusion of a contract on exchange transactions on behalf of a bank. This article consists of 6 chapters covering the concept and function of agency in commercial act, the introduction of bank agent service system in United States and Japan and the expected effects, etc. The major expected effects of bank agent service system are as follows. First, bank agent can contribute to the better service at the windows by widening of business offices. Second, bank agent service can help dissolve the personal backlog problem and work out the new business strategies. Third, principal bank can make the most of the business foundation of enterprise that combine bank agent with other businesses. In relation to the introduction of bank agent system, there are challenging problems to be considered. First, a sound and appropriate measures should be taken to prevent the unfair transaction or abuse of customer's information. Therefore a strict and thorough supervisory system is necessary. Second, bank agent is inclined to be tempted to handle the loan business negligently to raise the business performances. To avoid the bad loan assets, effective monitoring and compliance system should be considered. Third, one of the most important and critical issues is the compensation liabilities of principal bank. In conclusion, the writer of this article thinks that the expected benefits of bank agent service system are predominate the problems related and hereby suggests the introduction of the bank agent service system for the better custom services.

自己株式 取得規制에 관한 主要國의 제도와 시사점

도제문 한국경영법률학회 2006 經營法律 Vol.17 No.1

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.

어음(手票)抗辯에 관한 一考 : 抗辯의 分類, 善意取得과의 關係, 英美法上의 關聯規定

都濟文 한국경영법률학회 2001 經營法律 Vol.12 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.