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In 1998, 1999 and 2001 after IMF Control over Korean economy, Korean Commercial Code relating to stock corporation was amended three times and got near to American Law. Namely, outside director system and audit committee system were adopted by such amendments. But I doubt whether the corporation will be managed more effectively by the adoption of such systems. I propose the following corporate governance for more effective management of stock corporation. (1) Supervisory organ should be absolutely seperated from the executive organ (2) Supervisory organ should have powers to nominate executive director(officer), to decide compensation of executive director and to supervise the accounting of corporate management. What is the ideal supervisory system to satisfy the above two requirements in Korea? I think it is the German system(dual-board system, Aufsichtsrat und Vorstand) rather than Anglo-American system(single-board system).
1. That the Draft stipulates newly the principle of the utmost good faith in all insurance contracts (Art. 638 Para. 2), is very reasonable. 2. The newly regulated (by the Draft) powers of insurance agent, insurance broker or insurance salesman (Art. 646-2) are required to be stipulated in more detail and correctly. 3. The newly regulated Articles saying that the insurance contract by fraud is invalid (Art. 655-2) and the insurer does not have any obligation against the claim of the amount insured by fraud or forged documents and so on (Art. 657-2), are appropriate. 4. That the Draft extends extinctive prescription period of the claim of the amount insured to 3 years from 2 years and extends extinctive prescription period of the claim of premium to 2 years from 1 year (Art. 662), is proper. 5. That the Draft regulates newly the effect of default of duty to notify double insurance (Art. 672-2 Para. 2), is not necessary. It can be stipulated in Art. 651-2 together. 6. That the Draft regulates newly the effect of default of duty to notify the assignment of the subject-matter of insurance (Art. 679 Para. 2·Para. 3), is not necessary. 7. The present Article 680 saying that the insurer always shall be liable to pay the necessary or advantageous expenses to prevent a loss, should be kept up. Therefore, the Draft Article 680 Para. 2 and Para. 3 which the Draft changes the above present provision, should be deleted. 8. That the Draft restricts the subrogation right of insurer to the family members of the person effecting the insurance or the insured (Art. 682 Para. 2), is reasonable. 9. That the Draft stipulates newly the guaranty insurance (Art. 726-5, 726-6, 726-7), is proper. 10. That the Draft regulates newly the amount insured to be paid separately in all contracts of person insurance (Art. 727 Para. 2), is proper. But the word “as an annuity”should be inserted in Art. 727 Para. 2 by my opinion. 11. That the Draft deletes Art. 735 (Endowment Insurance) and Art. 735-2 (Annuity Insurance), is proper. 12. That the Draft permits a feeble-minded person to effect the insurance and to consent as the insured (Art. 732), is improper. 13. That the Draft regulates newly the reasons for which the life (death) insurer is relieved of liability in detail (Art. 732-2), is appropriate. 14. That the Draft regulates newly the effect of default of duty to notify any other life insurance(s) (Art. 732-3 Para. 2), is not necessary. It can be stipulated in Art. 651-2 together. 15. The newly regulated (by the Draft) provision saying that a half of the amount insured of life (death) insurance is exempted from attachment (Art. 734-2), is proper. 16. The newly regulated provision (Art. 735-3 Para. 3) saying that the written consent of the insured should be required if the person effecting the insurance orders any other person except the insured as beneficiary in group insurance, is improper. 17. The newly regulated provision saying that the policy conditions concerning exemption of liability of the insurer in case of no license or drunken drive and so on are valid (Art. 737-2), is proper. 18. The newly regulated provision saying that the provisions concerning property insurance shall apply mutatis mutandis to personal accident insurance which has the character of property insurance (Art. 739 Para. 2), is very proper. 19. That the Draft regulates newly provisions concerning sickness insurance (Art. 739-2, 739-3, 739-4), is very proper.
The payment and settlement system means the systemic mechanism which clears and settles any debts derived from any economic activities by transferring monetary values. The Payment system in Korea consists of large value funds transfer system being operated by the central bank, net settlement system, securities settlement system and foreign exchange settlement system. Though the payment system play a role as a important infrastructure for the financial stability by transferring every payment funds, the payment system is vulnerable to a serious breakdown when the system meets obstacles because of any participant’s defaults or any computer net is paralysed by the worker’s strikes. The payment system is one of the important infrastructure including financial system, financial business and financial markets. Therefore the operation of stable and efficient payment system has deep relations with financial stability. In reference to these subjects, the Bank for International Settlement (BIS) enhances the standard of requirements to central banks concerning the operation and oversight of payment system. Recently, against the increase of interrelation between the inside and outside of the country and the rapid increase of payment volumes, the problem of system risks has been seriously recognized and the importance of oversight of payment system by the central bank has been 80 金融法硏究제2권 제2호(2005) The Korean Journal of Financial Law, Vol. 2, No. 2 (2005) The Oversight of Payment System and the Role of the Central Bank Chan Hyung Chung, Gyung Young Jung, and Jae Moon Do emphasized. Consequently, many countries is tending to enable the central bank to oversee the payment system clearly by revising the related regulations and central bank’s acts. The revised Act of the Bank of Korea of 2003. 9. enabled the Bank of Korea to operate and oversee the payment system generally to achieve the stability and efficiency of the payment system. This articles touches and introduces the payment system and regulations related in Korea, the relation between the central bank and the payment system and the oversight system of the payment system in major countries and Korea.
The Act relating to Issuance and Negotiation of Electronic Promissory Note promulgated on March 22, 2004 (Law No. 7197) has many problems. Namely, the Act is against the tendency of International Uniform Laws about Bills and Checks and does not harmonize with the current Bills and Checks Act. I wonder also whether the default will be rising through the misusing of the Electronic Promissory Note. The above mentioned problems (including abolition of the Act) should be analyzed and solved absolutely before the enforcement of the Act.
Whether the legal nature of guaranty insurance is guaranty or insurance, is one of the most controversial issues in Korea Insurance Law. There is no different view in respect of that the guaranty insurance partakes of the nature both of guaranty and insurance. But there is a wide disagreement over which one of two natures prevails. In my opinion, the nature of insurance has priority in the guaranty insurance. Because the parties of guaranty insurance contract are insurer and insured (debtor), while the parties of guaranty contract are guarantor and creditor. Even though the guaranty insurance substantially has the nature of insurance, it has also partly the nature of guaranty. Therefore, some articles of insurance law cannot be applied to guaranty insurance cases, while the articles of guaranty debt in the Civil Code should be applied to those cases. 2007 amendment draft of Korean Commercial Code (Insurance Law) newly stipulated the articles of guaranty insurance in the Korean Commercial Code reflecting the nature both of guaranty and insurance in the guaranty insurance.