派生商品去來의 擔保化에 따른 法的 問題 Legal Aspects of Collateralized Derivative Transactions

박훤일(Park, Whon-Il) 경희대학교 경희법학연구소 2004 경희법학 Vol.39 No.1

When a finance company X entered into derivative deals with a Korean company Y, X collateralized the transactions using pledge upon the stocks issued by X under the Korean law. In the meantime, Y fell into default and finally applied for corporate reorganization proceedings. As a consequence, X could unilaterally dispose of Y-owned stocks and used the proceeds to satisfy its claims. But the receiver of Y tried to avoid the disposition of pledged property by X on the ground that it amounted to the extinguishment of claims after the suspension of payment subject to the Court s order to preserve Y s assets. It is true Y did not commit any act in relation to the disposition. Nevertheless, in February 2003, the Supreme Court rendered a decision (2000 Da 50275) that denied the disposition of collateral by a secured party because a receiver s right to avoid was still applicable. The rationale was that any individual exercise of pledge rights is prohibited and stayed, and that all acts of repayment of debt or extinguishment of claims had to be made within the context of the rules governing the corporate reorganization proceedings. The Court held that implicit in the act of avoidance is an obligation to restore the property of the company under reorganization to its original state. 43) Based on the ruling, it can be concluded that disposition of pledged property to satisfy a secured claim is equivalent to an act of enforcement and is thus subject to a receiver s right of avoidance. As a matter of fact, international banks can no longer be certain of the effectiveness of taking a security interest in Korean assets by way of a pledge from Korean companies. In response, various solutions have been sought to overcome the uncertainty and deal with the practical reality of mitigating risk in their derivative and other secured lending transactions. Approaches being considered include: - maintaining collateral outside of Korea for use as eligible collateral under a Credit Support Agreement (CSA); - using repurchase agreements or trust structures; and - adapting the automatic early termination concept to a CSA. In practice, a financial institution engaged in derivative transactions used to have the following options: i) creating continuing pledge upon the collateral like cash or securities; or ii) exercising set-off between the counterparty s deposit of cash or securities and its own secured claims. As a result, if a party of the transactions applied for bankruptcy or corporate reorganization proceedings, the secured party may enforce its security right by disposing of the collateral and using the proceeds to satisfy its claims. If the secured party contemplates set-off in the event of insolvency, the creditor may collect its residual claims by setting off its liability to return the deposit up to the identical amount. This kind of set-off is provided for as close-out netting in the event of insolvency of the counterparty under the ISDA Master Agreement. Therefore, the concept of automatic early termination together with contractual close-out netting under the ISDA Master Agreement is construed effective in the event of insolvency of the counterparty of derivative transactions. However, it is unclear whether netting would be respected under the Corporate Reorganization Act. So the ultimate response to the collateralization of derivatives issue is likely to be a legislative one. At present, it remains to be seen whether the collateral issue within the context of derivative transactions will be incorporated into a new consolidated insolvency law, whose draft will be posted again on the new agenda of the National Assembly. Otherwise, a new special act might be considered in the same manner as the Japanese Law on the Close-out Netting of Specific Financial Transactions Carried-out by Japanese Financial Institutions. In view of the on-going North-East Asian Financial Hub Strategy of the Government, it seems to be imperative to

海外投資와 지속가능발전 원칙 - 프로젝트 파이낸스의 赤道原則을 중심으로

박훤일(Park Whon-Il) 한국무역상무학회 2006 貿易商務硏究 Vol.31 No.-

  Today"s financial institutions usually take environmental issues seriously into consideration as they could not evade lender liability in an increasing number of cases. On the international scene, a brand-new concept of the "Equator Principles" in the New Millenium has driven more and more international banks to adopt these Principles in project financing.<BR>  Sustainable development has been a key word in understanding new trends of the governments, financial institutions, corporations and civic groups in the 21st century. The Equator Principles are a set of voluntary environmental and social guidelines for sustainable finance. These Principles commit bank officers to avoid financial support to projects that fail to meet these guidelines. The Principles were conceived in 2002 on an initiative of the International Finance Corporation (IFC), and launched in June 2003.<BR>  Since then, dozens of major banks, accounting for up to 80 percent of project loan market, have adopted the Principles. Accordingly, the Principles have become the de facto standard for all banks and investors on how to deal with potential social and environmental issues of projects to be financed. Compliance with the Equator Principles facilitates for endorsing banks to participate in the syndicated loan and help them to manage the risks associated with large-scale projects.<BR>  The Equator Principles call for financial institutions to provide loans to projects under the following circumstances:<BR>  - The risk of the project is categorized in accordance with internal guidelines based upon the environmental and social screening criteria of the IFC.<BR>  - For Category A and B projects, borrowers or sponsors are required to conduct a Social and Environmental Assessment, the preparation of which must meet certain requirements and satisfactorily address key social and environmental issues.<BR>  - The Social and Environmental Assessment report should address baseline social and environmental conditions, requirements under host country laws and regulations, sustainable development, and, as appropriate, IFC"s Environmental, Health and Safety Guidelines, etc.<BR>  - Based on the Social and Environmental Assessment, Equator banks then make agreements with borrowers on how they mitigate, monitor and manage the risks through a Social and Environmental Management System. Compliance with the plan is included in the covenant clause of loan agreements. If the borrower doesn"t comply with the agreed terms, the bank will take corrective actions.<BR>  The Equator Principles are not a mere declaration of cautious banks but a full commitment of lenders. A violation of the Principles in the process of project financing, which led to an unexpected damage to the affected community, would not give rise to any specific legal remedies other than ordinary lawsuits. So it is more effective for banks to ensure consistent implementation of the Principles and to have them take responsible measures to solve social and environmental issues.<BR>  Public interests have recently mounted up with respect to environmental issues on the occasion of the Supreme Court"s decision (2006Du330) on the fiercely debated reclamation project at Saemangeum. The majority Justices said that the expected environmental damages like probable pollution of water and soil were not believed so serious and that the Administration should continue to implement the project seeking ways to make it more environment friendly.<BR>  In this case, though the Category A Saemangeum Project was carried out by a government agency, the Supreme Court behaved itself as a signal giver to approve or stop the environment-related project like an Equator bank in project financing. At present, there is no Equator bank in Korea in contrast to three big banks in Japan. Also Korean contractors, which

정부기관의 정보열람 요구와 ISP의 협조의무

박훤일(Park, Whon-Il) 경희법학연구소 2016 경희법학 Vol.51 No.2

2016년 3월 대법원은 세간의 화제였던 ‘회피 연아’ 사건에서 정보주체의 동의 없이 경찰에 통신자료를 제공한 NHN의 행위가 적법하였다며 원고에 대한 손해배상 책임이 없다는판결을내렸다. 원심이ISP에대한통신자료요청시법원의영장을요한다고한것을뒤집은 것이다. 3월 초에는 많은 논란을 빚은 테러방지법이 국회를 통과하여 정부기관의 ISP에대한 통신자료 요청은 더욱 늘어날 전망이다. 2013년NSA에서일하던스노든이미정보기관의글로벌감시(PRISM) 프로그램을폭로한이후 각국은 정부기관의 정보접근에 매우 민감한 실정이다. EU에서는 2015년 10월 최고재판소가 정부기관의 ISP 정보열람이 허용되는 미국과 EU가 맺은 세이프하버 협정이 무효임을선언하였고, 12월에는회원국에직접법률로서효력을갖는GDPR이확정되었는데정부기관의 정보열람을 엄격히 제한하고 있다. 6년을 끌었던 ‘회피 연아’ 사건의 본질은 수사기관이 ISP가 보관하는 개인정보를 어느 범위까지 어떤 식으로 접근할 수 있는가로 요약할 수 있다. ISP가 수사기관의 통신자료 제출요청에 응할지 여부는 관련법에 그 기준과 절차가 정해져 있다. 이용자 인적사항은 익명을많이 쓰는 ID를 제외하고는 전화번호부 수준이라 할 수 있다. 개인정보는 신성불가침이 아니고, 프라이버시권이 ‘홀로 있을 권리’에서 ‘개인정보자기결정권’으로 바뀐 것처럼 빅데이터, 핀테크 등에 필수적인 개인정보는 ‘IT편의성을 증진하는개인의 특권’으로 변모하고 있다. 정보주체의 권리인 만큼 자신에 관한 정보가 오·남용되는것을 알았다면 지체 없이 시정하고 이를 야기한 책임자가 있다면 그로부터 응분의 피해보상을 받을 수 있어야 한다. 상기 대법원 판결에도 불구하고 ISP는 이용자들의 항의나 손배청구 소송을 우려하여 수사기관의 통신자료 제출요청에 영장 없이는 응하지 않을 방침이라고 한다. 개인정보 유출이나 오·남용 피해를 입은 개인에 대하여 ARCO(열람·정정·거부)권을 보장하고, 시차를 두더라도 개인정보가 수집된 정보주체에 대해서는 통지하는 절차가 필요하다고 본다. In March 2016, the Supreme Court rendered a noteworthy decision that an Internet portal service provider (ISP) need not pay compensation to the plaintiff who argued the ISP had provided his personal data to police without his consent. The highest court reversed the appellate court ruling which said ISP’s provision of such personal data required the court warrant on account of customers’ constitutional rights of self-determination and anonymous speech. The above Supreme Court decision came right after the National Assembly passed the controversial Anti-terrorism Act, which authorizes the head of the National Intelligence Service (previously known as the Korean CIA) to collect personal information as well as location information of a certain terrorist suspect from ISPs pursuant to the existing laws. Since Edward Snowden disclosed the global surveillance (PRISM) programme of the National Security Agency to the world in June 2013, the government accesses to personal data in the private sector have been a hot issue around the world. At this juncture, the Court of Justice of the European Union declared the Safe Harbor Agreement between the European Union and the United States invalid. In December 2015, the General Data Protection Regulation, which is legally binding all member states and strictly limiting government accesses to personal data, was consolidated to become effective in May 2018. The main question of the six-year long “Minister Avoiding” Yuna litigation seemed to be to what extent the government investigation agency may access to personal data stored by ISPs, and whether the government agency may request ISPs to provide simple personal data without court warrants. The Telecommunications Business Act provides the statutory ground for ISPs to respond to such requests. The scope of personal data requested by the prosecutors or police officers is the personal information including name, address, telephone number and email address, which is usually contained in an ordinary business card. It should be noted that personal information is no more sacrosanct right in the Information Age. Historically, the right to privacy has changed from the right to be let alone (as termed by Warren and Brendeis) to the right of self-determination of personal information. Nowadays personal information, subject to appropriate processing of de-identification or anonymization, has become inevitable to Big data and Fintech businesses. Then the right to privacy has turned out to be an individual privilege to enhance IT convenience. Also any data subject should be ensured the rights to access, rectification, cancellation and objection (ARCO) relating to his/her personal data and the effective administrative and judicial remedies including pecuniary compensation and punitive damages, if necessary, in case of abuse or misuse of personal information. At the moment, the above mentioned Supreme Court decision is not supposed to change the year-long practices that government agencies need to obtain warrants in order to have personal data disclosed by ISPs. After the said Supreme Court decision, big portal operators seem to maintain their policy of no-more-cooperation with the investigation authority. It’s because they know the failure to disclose personal data to the government agency would cause no punishment but clamorous requests from investigators while any delivery of personal data would bring avalanche of users’ lawsuit for damages. In the long run, the awareness of privacy or increasing inclination towards IT convenience on the part of users could determine the future of the relevant provisions of the Telecommunications Business Act and the prevailing government practices.

주요한의 ‘불놀이’와 사형제 폐지 논의

박훤일(Park, Whon-il) 경희법학연구소 2021 KHU 글로벌 기업법무 리뷰 Vol.14 No.2

域外金融을 둘러싼 법률문제

박훤일(Park, Whon-Il) 경희법학연구소 2005 경희법학 Vol.39 No.3

Korea s admission to the Organization for Economic Cooperation and Development (OECD) in 1996 ignited the inbound and outbound flows of capital. Several Korean corporations embarked on investment in the so-called tax havens like Cayman Islands, Labuan and Dublin. Until the 1970s, the offshore financial centers (OFCs) around the globe had been tapped only for the purpose of borrowing foreign capital necessary for the development of the nation. Since the 1980s, OFCs have been used as a gateway to foreign investments in line with the improved Korea s balance of payment conditions. Offshore banking may be simply defined as borrowing from and lending to non-residents. So an OFC is a jurisdiction where such out-out transactions far outweigh transactions related to the domestic economy. The most famous OFCs are London, Singapore, Dublin, Cayman Islands and Labuan, among others. As the international funds flow to the OFCs making use of looser regulation than any other financial markets, OFCs attract more and more capital around the world. International banks, insurance companies, fund managers, representatives of the special purpose vehicles (SPVs) related with securitization are mushrooming in those financial centers. More often than not OFCs are criticized for money laundering, tax competition and other unfair transactions. The Korean government, however, has a master plan to establish a regional financial hub in East Asia by making Incheon and Jeju Island an attractive offshore market. On the other hand, harmful tax practices staged in those tax havens are increasingly put under the surveillance of nations concerned. OECD is leading the project to eliminate such practices to preserve the integrity and fairness of the tax systems of Member States. In particular, the United States is alert to the movement of unidentified funds through many OFCs. In this context, the Korean government is reinforcing the regulation and supervision of the offshore banking activities of Korean financial institutions and companies. Authorities attention have been paid to the attempted tax evasion and unfair trading of securities in violation of the Korean tax law and the foreign exchange-related laws. This article examines the mechanism of the OFCs around the world and the content of regulations concerning Korean financial institutions and enterprises. At present, the taxation of profits from the offshore funds invested by a Korean tire manufacturer would make an interesting issue in this regard. In general, the preoccupation of offshore fund managers is to give more dividends to the investors than expected. So every OFC levies no or nominal tax on revenues arising out of such funds, and makes convenient or streamlined the chores of establishment of a company, calling of shareholders meeting, distribution of dividends and so on. It is allegedly offshore funds stationed to OFCs that commit such illegal activities as foreign exchange speculation and manipulation of stock prices. However, such activities must be subject to strict regulation of each government. In terms of illegality, the effect of activities at issue depends on the nature of provisions. If a fund manager violates provisions of the Foreign Exchange Transactions Law, which aims at law enforcement with little legal impact to the violating activity, 44) his activities are not always null and void keeping the legal status of funds intact, though he could be subject to administrative fines. Therefore, it is not advisable to determine the activities of offshore funds in accordance with local laws and regulations. It will thwart the international banking activities related with OFCs because international competitiveness depends to some extent on how to exploit OFCs. In this regard, it is contrary to the national agenda to make a regional financial hub that the revenue from the offshore funds is directly acknowledged as that of a local investor, although the fund is invested and d

글로벌 금융위기로 대두된 신용평가회사 이해상충 문제의 해결방안

박훤일(Park, Whon?Il) 한국증권법학회 2011 증권법연구 Vol.12 No.1

글로벌 금융위기가 구조화상품에 대한 신용평가가 부실했던 데 기인한다고 판단한 주요국의 감독당국은 신용평가회사에 대한 규제?감독의 강화에 나섰다. 우리나라에서도 ‘국제적 정합성’이라는 이름 아래 신용평가와 관련된 이해상충을 방지하는 방안, 진입장벽을 낮추고 자유경쟁을 촉진하는 방안 등이 검토되었다. 이해상충 방지 및 준법감시 체제 구축을 골자로 한 신용평가회사의 표준내부통제기준도 2010년 1월부터 시행되고 있다. 금융위기를 극복하기 위해 각국이 공조체제를 취하는 것은 바람직하지만, 신용평가산업의 발전을 도모하기 위해 발행자의 ‘신용평가 쇼핑’을 차단하고, 신용평가 성적을 반영한 순환지정 평가제를 적용할 수 있다고 본다. 우리나라가 1997년부터 ‘감사인 순환지정제’를 성공적으로 시행해 온 점에 비추어 다음과 같은 신용평가회사의 순환지정제도의 도입을 제안하고자 한다. 즉, 일정한 발행총액을 넘는 대형 발행 건에 있어서 객관적인 신용평가 실적을 고려하여 순환지정을 하는 것이다. 일정한 자격요건을 갖춘 신용평가회사들로 하여금 번갈아가며 수주하도록 하되, 객관적인 기준에 따라 증권선물위원회가 순서를 조정하면 될 것이다. 복수평가를 요하는 경우에는 발행자가 다른 신용평가회사를 지정하여 서로 공정하고 정확한 신용평가를 하도록 한다. 아무래도 실적이 좋은 신용평가회사가 신용평가의 기회를 많이 얻게 될 것이다. 정부기관이 신용평가회사를 지정하더라도 발행자가 수수료를 지급하게 되지만 이해상충의 문제는 일어날 여지가 없다고 본다. Based on the belief that inaccurate and improper credit ratings of structured finance products resulted in the global financial crisis, the regulators of the United States and other major countries increased their monitoring and supervision of credit rating agencies. Since the real problem was not caused by the credit rating but the structuring process and risk management, we have to think about what the credit rating is, and what makes it necessary. In Korea, systemic efforts to prevent conflicts of interest, to promote competition and new methodologies, to introduce new symbols and systems of rating and so forth, have been taken and carried out to reform the credit rating agencies in line with the so?called global standards. In particular, the standard internal control standards have been implemented by the Financial Supervisory Service since January 2010, in which prevention of conflicts of interest, enhanced compliance, disclosure of credit rating process and results, and no more unfair activities are called for in a concrete manner. This paper examines the new regulations and supervision of credit rating agencies introduced by the United States, EU, Japan and the IOSCO. Some questions remain that Korea has to apply identical measures even though its background and economic circumstances are quite different from those of other countries. It seems to be necessary for the growth of Korean credit rating industry to discourage rating shopping rather than to reduce the reliance on external ratings. So as to solve the information asymmetry, double ratings in line with the aggregate amount of bond issues, nomination of credit rating agencies by rotation based upon their performances are strongly recommended. Take a precedent of the auditor rotation system which has been successfully implemented since 1997. This half?mandatory system has brought to halt the close relations between the auditors and audited companies, and ensured the independent auditing for at least three years. The author’s suggestion is summarized as follows: ? To select a credit rating agency by rotation in case that the aggregate amount of bond issues exceed a certain amount; ? To assess the rating performances including credit rating default ratios of the rated issuers during the past few years; ? To take into consideration the agency"s voluntary disclosure of information and cooperative attitude toward the regulators; and ? To authorize the above?mentioned functions to the Securities and Futures Commission in the Financial Services Commission. Accordingly, credit rating agencies with good performances have more chances to do rating jobs. Sometimes, the “Issuer?Pays” model is believed to have something to do with conflicts of interest. However, the newly suggested “Government as Umpire” model does not care who pays for the rating service. W here double ratings are required for a sophisticated and large?amount bond issue, the issuer should nominate a different credit rating agency so that two agencies may observe the fair play rule in a competitive manner.

개인정보의 보호를 위한 안전조치

박훤일(Park, Whon-Il) 경희법학연구소 2005 경희법학 Vol.40 No.2

In this Information Age, the common awareness of data protection issues has been significantly enhanced and, at the same time, might stymie the burgeoning electronic commerce. In the European Union, the Data Protection Directive prevents the transfer of personal data to a third country if there is no adequate level of data protection. For the facilitation of free flow of data cross the border, however, it might be allowed to transfer personal data insofar as there are safeguards for the protection of privacy. Articles 25 and 27 of EU Directive provide for self-regulation, standard contract, the safe harbor principles and newly introduced code of conduct as data protection safeguards. In this regard, the EU Commission has urged multi-national corporations to adopt the binding corporate rules (BCRs) to further trans-border data flow around the globe. For example, the model contracts for transfer of personal data to third countries, as approved by the EU Data Protection Working Party, require a data exporter and a data importer to observe the data protection provisions and to warrant a third party beneficiary clause. The data subject has the right to have access to his or her own information and may demand to correct or delete incorrect information. He or she may resort to appropriate remedies and damages if his or her personal data have been infringed upon. The safe harbor principles apply to the transfer of data between the United States and EU member states. They are based on the private sector self-regulation and invoked by the applying organizations when they report voluntary observance of such principles to the U.S. Department of Commerce. But the participating organizations are limited in numbers, and financial companies most eligible for safe harbor principles are excluded from such a regime. EU member states allows data flow staged by multinationals when they are subject to BCRs. It means the privacy policy of an individual company is extended to the whole group and even to foreign affiliates established in a country with no appropriate data protection legislation. In other words, when a business group transferring personal data around EU countries is committed to comply with the EU data protection provisions and to establish a code of conduct containing appropriate remedies and redress for data subjects, the competent data protection authority may grant the authorisation as safeguards necessary for data protection, which would be almost automatically repeated by other authorities in other member states. In legal terms, BCRs shall respect the EU data protection principles and comply with the relevant law and regulations of member states. Currently multinationals such as Daimler-Chrysler, GE, Phillips, and others have been implementing BCRs approved by competent data protection authority when transferring personal data to third countries. Increasing number of U.S. financial institutions beyond the scope of the safe harbor principles are adopting BCRs for trans-border data flows. Korean companies which frequently deal with personal data with foreign trading partners should assess the level of data protection of the foreign country. When they are doing personal data-related business with a partner in EU countries, Korean companies should carefully observe the appropriate safeguards including BCRs, as required by the EU Directive.

회사의 구조조정과 청산

박훤일(Whon-Il Park) 한국기업법학회 2009 企業法硏究 Vol.23 No.1

This article analyzed the real case regarding the winding-up and liquidation of the Korea Integrated Chemical Inc.("Korea Chemical"). Throughout the 1970s since its establishment in 1974, Korea Chemical had carried out its mission as a holding company in the public sector fully committed to implement the core economic development plan with regard to petro-chemical projects. But quickly changing economic circumstances in the 1980s and the on-going privatization program of the government-invested corporations drove Korea Chemical to divest itself of most subsidiaries except only one downstream product-using company. Several times of restructuring programs were implemented in vain because of price hike of raw materials and low productivity. The more products Korea Chemical manufactured, the more deficit it generated. Consequently, the government and the major shareholder, the Korea Development Bank ("KDB") concluded that Korea Chemical and its subsidiary should be wound up as soon as possible. What was wrong with Korea Chemical? Was the financial distress caused by operational problems or debt/equity structure? Then the appropriate solutions could be adopted for the purpose of corporate turnaround or financial restructuring. As for Korea Chemical, in a simulation of legal matters, the following problems should be addressed to put aside the question of business operations or financial management at the moment: ⅰ. Generally speaking, why and how could Korea Chemical be wound up and liquidated? ⅱ. What was the best way to sell the properties of Korea Chemical and its subsidiary? ⅲ. How could Korea Chemical negotiate with employee strikers and the trade union which demanded continual employment? ⅳ. By what means, could Korea Chemical soothe and overcome the objections and discontent of community neighborhood? ⅴ. How could Korea Chemical treat any tax or other contingent liabilities which occurred in the course of liquidation? ⅵ. How could the residual properties of the liquidated company be distributed among its shareholders? As far as Korea Chemical was concerned, it was the failure of M&A with a productive fertilizer company and the malfunction of the newly started project company that made irrepairable financial trouble. Finally, the management and major shareholders of Korea Chemical decided to wind up the affairs of the company and dissolve it. Voluntary liquidation began when the special meeting of shareholders of Korea Chemical passed the resolution, and the company generally ceased to carry on business at that time. If the liquidation proceeded as a voluntary winding-up, the general meeting of shareholders appointed the liquidators. The liquidators handled the corporate affairs only to complete liquidation work in a given time period. In a capacity as the biggest shareholder and a major creditor, KDB took the initiative and played a pivotal role in the course of liquidation. After all, KDB succeeded to collect more claims and residual properties than expected.

북한 인프라의 재건과 프로젝트 금융의 적용 가능성

박훤일 ( Whon-il Park ) 한국경제법학회 2005 경제법연구 Vol.4 No.2

북핵문제를 둘러싼 베이징 6자회담이 조만간 타결될 경우 북한에 대한 엄청난 규모의 경제원조가 필요할 것으로 보인다. 그 동안 남북 경협사업에 프로젝트 금융을 적용하자는 提案이 종종 있었거니와 본고는 이에 관한 구체적인 행동계획을 검토한 것이다. 남북 경협사업에 프로젝트 금융을 적용하려면 ① 장기간에 걸쳐 안정적인 현금흐름이 창출되고, ② 새로운 투자유치의 촉매제가 되는 동시에 대외차입 시 담보 구실을 할 수 있어야 하고, ③ 북한으로 하여금 대형 프로젝트의 관리능력을 배양할 수 있게 하는 등의 조건을 갖추어야 한다. 개성-신의주 간 有料 고속도로의 건설 및 운영은 남·북한은 물론 동북아 물류를 원활히 할 수 있을 뿐만 아니라, 북한측에 상당한 규모의 현금흐름을 가져다 줄 것으로 예상된다. 북한에서의 '고속도로 건설은 남북협력기금 지원이 가능한 남북경협사업의 일환으로 추진하되, 북핵문제의 해결을 계기로 미국을 비롯한 주요국과 국제금융기구가 참여하도록 해야 한다. 그리하여 고속도로 사업에서 발생하는 수익이 북측에 유입된다면 북한 당국은 그와 비슷한 사업계획에 적극성을 보이게 될 것이다. 이것은 통일 전에 서독 정부가 동독의 고속도로 건설을 지원하고 고속도로 통행료를 일괄 지급한 사례에서도 엿볼 수 있다. 이러한 방식으로 프로젝트 금융 방식이 성공한다면 정부와 민간이 긴밀하게 협력하는 가운데 석유·천연가스·전력을 실어 보내는 파이프라인 내지 송전선 등의 설비 건설에도 그대로 적용할 수 있을 것이다. As the Six Party Talks in Beijing give rise to a hope the North nuclear issue could be settled sooner or later, a huge amount of economic grant to the North seems to be necessary. So far several suggestions have been made that a project financing would be useful to the North-South economic cooperation. This article is to study a feasible action programme for such a financing scheme, which requires the followings: - There should be long-term stable cash flows; - The project should function as a catalyst and reliable resources to further economic development; and - The North Korean technocrats could learn how to handle large-scale projects. Highway construction projects are believed to satisfy the above-mentioned conditions. Gaeseong-Shinuiju Highway, which will be named as a part of Asian Highway No. 1 (AH1), would meet the logistic needs of manufacturers and merchants from South Korea and northern provinces of China as well. The construction projects of North Korean highways could be supported by, at first, the North-South Cooperation Fund of ' South Korea, and next, the concerted efforts by the United States, European countries and supranational institutions like the World Bank and the Asian Development Bank. We can find an effective example from the West and East German relations before the unification. In the 1970s, West Germany helped Hast Germany reconstruct the highways leading to West Berlin. The West German government paid to East Germany the aggregate toll money in advance, which was often used as collateral for future foreign borrowings of East Germany. If this kind of financial scheme proves to be successful, the construction of such throughputs as pipelines and electric power lines could be financed in a similar way employing a project financing scheme.

Privacy Issues and Public Opinion in Korea

Park, Whon-Il(박훤일) 경희법학연구소 2007 경희법학 Vol.42 No.2

한국에서의 개인정보보호는, 헌법상으로는 사생활의 자유가 보장되고 있었음에도 국가안보와 행정편의를 위하여 유보되다가, 1980년대 중반 민주화가 진행된 다음에야 중시되기 시작하였다. 1968년 무장공비 침투사건을 계기로 주민등록제가 전면 실시되고 모든 국민의 주민등록증 소지가 의무화되면서 국가적으로 개인정보나 프라이버시 보호는 뒷전이었고, 이는 남북 긴장관계가 지속되는 동안 큰 변화가 없었다. 그러나 ‘6월 항쟁’의 결과 정치적․사회적 민주화가 진척되고 1988년의 서울 올림픽, 1996년의 OECD 가입으로 프라이버시 보호는 돌이킬 수 없는 대세가 되었다. 이에 따라 일반국민의 개인정보에 대한 인식이 높아져 정부가 의욕적으로 추진하던 전자정부 사업에도 제동이 걸렸다. 대표적인 사례가 교육행정정보시스템(NEIS)이다. 정부는 교육행정의 효율화를 위해 많은 예산을 들여 이를 의욕적으로 추진하였으나, 전국교원노조의 반발시위와 시민단체의 반대에 부딪혔다. 급기야는 국가인권위원회와 법원의 일부 항목 삭제 권고 및 사용금지 가처분명령에 따라 문제의 항목을 제외한 채 별도 시스템으로 운용하기 로 하고 가까스로 NEIS를 시행할 수 있었다. 이와 같이 개인정보보호에 있어서 여론은 매우 중요한 기능을 수행하고 있다. 국민들의 고양된 의식을 결집시켜 국가정책을 좌우할 수 있는 영향력을 발휘하기 시작했다. 여기에는 언론매체 못지않게 일반 네티즌들의 인터넷 통신 과 휴대폰 연락이 사람들의 행동을 통일시키고 있다. 이와 함께 여론형성에 있어 시민단체(NGO)의 역할이 날로 커지고 있다. 이들은 여론의 형성을 주도하고 조직화하는 일을 한다. 시민단체는 정부기관은 물론 온라인기업, 개인들의 개인정보 침해활동을 감시하고, 피해자의 구제에도 힘쓰고 있다. 우리나라에서의 개인정보침해구제는 분쟁조정절차를 통하여 대부분 해결되고 있는데, 피해액을 알 수 없더라도 정신적 고통에 대하여 금전적 피해보상을 하도록 하고 있다. 일반 국민들의 프라이버시에 대한 의식이 높아질수록 개인(신용)정보를 수집하고 이를 처리하는 온라인 업체들은 법의 감시를 받고 여차하면 손해배상을 하지 않을 수 없게 되었다. 개인신용정보는 신용정보법에 의하여 따로 보호를 받고 있다. 한국에서 현재 논란이 되고 있는 문제는 보편적 식별자로서의 주민등록번호를 어떻게 할 것이냐 이다. 당초의 행정목적과 관계없는 ID확인을 위해서는 그 대체수단을 사용하도록 정부기관과 시민단체들이 노력하고 있다. 앞으로 전개될 유비쿼터스 환경에서도 개인정보가 침해되지 않도록 정책적으로 유의할 필요가 있다. 특히 급속도로 보급되고 있는 CCTV나 GPS 위치정보, 휴대폰 정보는 그 편리함 못지않게 프라이버시를 위협할 수 있는 수단이 되기 때문이다. 이와 같이 개인정보보호가 중요시되고 있음에도 다른 정치적 이슈에 밀려 개인정보보호 감독기구의 독립성 확보 등을 골자로 하는 개인정보보호법의 제정이 차질을 빚고 있는 것은 안타까운 일이 아닐 수 없다.