방송법 제78조, 제70조에 대한 비판적 고찰

한병영(Han Byoung Young) 한국정보법학회 2010 정보법학 Vol.14 No.2

방송법 제78조의 지상파방송 의무재전송 문제는 시청자 선택권과 플랫폼(platform)간 경쟁 유지라는 관점에서 바라보아야 할 필요성이 있다. 지상파방송사들의 디지털 콘텐츠에 대한 권리 보호와 플랫폼사업자들의 경쟁 유지와 사적자치의 확보에 초점 을 두어 고찰할 필요가 있다. 이에 재전송(retransmission)을 의무로 하지 아니하더라도 플랫폼들이 수익 구조를 위하여 스스로 재전송 할 동기가 강할 것이므로 굳이 사적자치를 제한하면서까지 정부가 나서서 의무화 할 이유가 있는지가 의문이다. 미국은 재전송을 부담 있는 의무로 인식하는 경향이 있어 시장에 맡겨 놓으면 지역 방송이 공급이 안 될 상황이 생기므로 지역방송 보호 차원에서 의무로 할 필요가 있다 하더라도 우리의 상황은 미국과 다르다. 그러나 의무재전송제는 아직도 제도의 효용성을 가지고 있고 시장에서 정착된 지가 오래 되어 익숙한 제도를 당장 없애면 혼란이 온다. 그래서 폐지는 장기적 과제로 고려하여야 할 것이다. 역시 방송법 제70조의 공영채널, 종교채널 및 공익채널의 의무전송제도는 폐지를 고려함이 타당하다고 본다. 비의무전송 대상(KBS2, MBC, SBS)의 재전송, 즉 임의재전송은 위성방송의 경우 승인 규제를 폐지하여 케이블방송 등과 같이 당사자 간 계약에 의해 하도록 하고, 케이블방송, 위성방송을 통해 역외재전송을 하고자 할 때에도 방송통신위원회의 승인을 얻도록 하는 규제도 폐지해야 한다고 본다. 역외재전송 실시에 대한 방통위의 승인 규정은 기본권의 제한을 정부의 승인으로 정하고 있어서 위헌 시비가 될 가능성이 있다. 역외재송신을 원칙적으로 허용해야 한다. 현행법상 역외재전송 금지규제를 해제하고 시장에 맡겨야 한다. The re-transmission issue of public broadcasting under Article 78 of the Broadcasting Act needs to take a look under the point of view in maintaining the competition between the right to use of viewers and platform. It would need to contemplate with the focus in securing the historic value and maintain competitiveness of platform business and protection of right on the digital contents of public broadcasting companies. Therefore, even if re-transmission is not obligatory, it would have strong motivation for re-transmission by itself for the profit structure of platforms that it is questionable to make obligatory requirement by the government as it limits the historic value. The US has the tendency to realize re-transmission as recognizing it as burdensome obligation that it may have the situation of unable to supply local broadcasting if it were left for market that it may be required to make it obligation for the local protection level, but the situation of Korea is different from the US. However, the obligatory re-transmission system still has the usefulness of the system that it could be chaotic if removing the familiar system since it has long been settled in the market. Therefore, abolition of it has to be considered as a long-term project. The obligatory transmission system of public channels, religion channels and public-profit channels under Article 70 of the Broadcasting Act is reasonable to abolish altogether. The voluntary re-transmission subject for the non-obligatory transmission (KBS2, MBC, SBS) has to be left off for the transaction by the stipulation between the parties and, when making the voluntary transmission to off-the-shore, the approval system of the Korea Communication Committee (KCC) has to be abolished. The approval regulation of the KCC on implementing the off-the-shore re-transmission is determined with the approval of the government for restricting the basic rights to have the possibility to be disputed for unconstitutionality. The off-the-shore re-transmission has to be permitted in principle. Under the current laws, the regulation to prohibit the off-the-shore re-transmission has to be deregulated to have the market to control.

부동산거래중개 법정보수제의 개선방안

한병영(Han Byoung-Young) 한국토지공법학회 2005 土地公法硏究 Vol.28 No.-

This study aims to come up with ideas for fair real estate brokerage fee by reviewing the Korean Real Estate Brokerage Business Act and acknowledging problem in the control of the maximum of brokerage fee through the act. The price regulation is not principally consistent with the market economy. Although, In Korean real estate brokerage business, the price regulation policy is enforced for the name of the stability of the national economy. The fee regulation policy results in cartel and unfair competition. This policy for the low-income brackets runs counter to the aim of the policy. This control of the brokerage fee is not consistent to the principal equality in Korean Constitution. The real estate brokers are treated discriminately with the fee control of the Korean Real Estate Act in compare with the lawyers etc. The violation of the legal limited fee is punished severely. This severe punishment is not consistent with the prohibition of the excessive regulation in the Korean Constitution. In conclusion, I emphasize the abolishment of the real estate brokerage fee limit in Korea. If this abolishment policy comes true in future, I forsee that the fee will come down from the present regulated price through the competition of brokerages in the market.

키코 계약의 소비자 계약성

한병영(Byoung-Young Han) 한국비교사법학회 2010 비교사법 Vol.17 No.3

KIKO contract system, introduced as one of derivatives options to hedge foreign exchange risks in Korea, has never failed to draw conflicts regarding its inherent unfairness and fraudulence, continuously producing legal suits between banks and businesses and volatile controversy among courts, supervisory authorities, and academic circles. KIKO contract was a chief derivatives option that was rapidly widely traded in 2006-2007, when the exchange rate was falling stably. But as the deteriorating financial crisis and the Government's exchange rate policy affected the rate against US dollars to reverse its trend to rise sharply, smalland medium-sized exporting businesses that had KIKO contracts had to suffer great losses since they had to sell their dollars from the export payment at the rate designated in the contract with their KIKO banks. This paper suggests to solve legal conflicts surrounding KIKO contract from the consumer's view; for businesses, the consumer, may have purchased the contracts impulsively without being fully aware of the complicated and risky nature of KIKO as derivatives, and also businesses in the contract are apparently and asymmetrically less competitive in terms of economic power and information than their counterpart banks. Issues in legal KIKO suits have been if KIKO contracts should be interpreted by the contract terms, if the contract was unfair, if the contract could be terminated according to the changes in circumstance rule, if the contract was of error or fraud, if the contract could lead to fraud charge, if suitability or explanation liabilities were satisfied, etc. This paper suggests the KIKO suits be handled and examined through the consumer protection law in addition to the private and criminal laws, noticing most KIKO contract buyers are small- and medium-sized exporting businesses and identifying them as consumers. Fairness and effectiveness will be enhanced in solving legal KIKO conflicts in those issues mentioned if the KIKO problem is handled through the consumer protection law and is viewed further through consumerism.

장외파생상품거래에 있어서 금융소비자 보호의 체계

한병영(Byoung-Young Han) 한국기업법학회 2010 企業法硏究 Vol.24 No.3

The purpose of this paper is to understand general investor as the party applicable to financial consumer over-the-counter (OTC) derivatives to recognize the justification for protection and develop the system by finding the legal principle for protection in a way of drafting the effective protection plan. Most of its content is the clearing of existing legal principles but new attempt is made to quote or apply the legal principle on consumer protection on the manufactured products. For legal principles to be applied to the OTC derivatives, the principles of contract law would be more likely to apply rather than those of securities laws since the OTC derivatives have formed with the structure of entering into contract on the one-on-one basis, not being used as in the way of securities. The approach is made to protect the consumers of OTC derivatives with the legal principles of civil law in invalidity, error, fraud, termination and the like. In light of the complexity of the OTC derivative structure, financial consumers easily enter into the contract under error, fraud or others with the failure to carry out the obligation of notification and there could be an issue of terminating the contract following the continuance of the contract. In the event that violations of due diligence obligation, fiduciary duty, protection of customer's interest, obligation to describe, or suitability rule as well as illegal trans-actions would constitute as torts to hold financial consumers as liable for damage compensation, the approach is made to the conversion method of product liability or burden of proof. Lastly, the contract used in the OTC transaction while approaching by applying the consumer protection principle would be considered as an article to apply the guaranteed right of consumers under the article regulation laws to financial consumers as reasonable. The class action system also would need to be introduced for the OTC derivatives as well as the need to introduce the right to cool off or voluntary cancellation right as well as the recall system, and even if the product liability cannot be applied to consumers of OTC derivatives directly, the principle may be used to review with respect to reflecting the same on the legislation.

시장진입장벽의 발생원인에 관한 고찰

한병영 ( Byoung Young Han ) 한국경쟁법학회 2009 競爭法硏究 Vol.19 No.-

This paper discusses where market entry barriers originate from. Entry barriers are traced through intrinsic market structures and behaviors of market-dominating enterprises. Entry barriers start from two types of disparity existing in market: advantages, absolute and strategic, that incumbents possess over potential entrants. Absolute advantage means a right to access to some production elements which a potential entrant is denied but should be equally entitled to. Strategic advantage typically arises from sunk costs and first-mover advantages. An enterpriser dominating in market can build up entry barriers taking advantage of absolute cost advantages and capital requirements, which themselves contain no notion of unfair means. Behavioral barriers may also meet certain requirements to be used as a means to check new entrants. It is not until structural barriers or strategic barriers cease to exist when semi-competitive markets or contestable markets will be established. Predatory pricing, tying arrangements, and exclusive dealings must be investigated, not only for their unfairness in the corresponding markets, but also for their influence on instituting entry barriers, which will conclude whether vertical actions in predatory intentions have contributed to creating a new market entry barrier and maintaining it thereafter. Market entry barriers are a premise to formation and continuation of monopoly. The market would handle itself were it not for its entry barriers, and in the long run competition laws of any sorts would find no room to intervene in it. Market entry barriers are related to what Monopoly Regulation and Fair Trade Act (1980) set out to realize, i.e., prohibition on the abuse of market dominance, restriction on the combination of enterprises, prohibition on improper cartels, and prohibition on unfair business practices. Various market entry barriers should be treated each with individual market conditions taken into account to reveal a more effective idea on market powers.

기업결합통제에 있어서 진입분석

한병영 ( Byoung Young Han ) 한국경쟁법학회 2011 競爭法硏究 Vol.23 No.-

An entry analysis typically inquires if the entry is likely to take place, and, in case it does, the analysis further examines if the entry can occur in due course and substantially so as to correct anti-competitive problems that may emerge in merge cases. A new entry will often induce prices more competitive for better consumer interests, and an entry analysis plays an important role in assessing competition effects of merger. In a market offering easy entry conditions the incumbents will not exercise market power unless a new entry is introduced. Possibilities of effects unilateral or cooperative due to a merger can be constrained by a mere threat alone, of the potential entry, in a market with no or low entry barriers, and those effects can be corrected when the entry actually takes place. The Guidelines of the Korea Fair Trade Commission indicate that, in case an entry into a market can be easily achieved in a short time, the number of rivals that decreased immediately after a merger will increase again, which will limits competition less substantially; this implies a new entry can contribute to sustaining the ongoing competition in a market with no or low barriers, even by a single effect of increasing number of firms caused by the entry. Then a new entry can influence on the effective competition maintained in a market where a merger is being tried or already achieved. An entry analysis assesses market entry conditions to determine whether entry barriers exist and how high the barriers are if they exist, constituting an integral part in a merger survey. Korean industries are of notably conglomerate-focused structure, so that in such a market non-conglomerate outsiders could find it difficult to overcome the systematic entry barriers which render the newcomers less competitive in cash flow, technology, manpower, logistics, advertisements, information, relationship to Government, group supports, and scales and scopes of economy, whereas conglomerates enjoy entering a market with a relative ease, increasing their subsidiaries ever. According to a report by the Korea Fair Trade Commission on April 10, 2010, the number of conglomerate subsidiaries subject to limit to mutual investments, whose total assets exceeds 5 billion US$, has been increasing remarkably since the new Administration began. Under this circumstance, an entry analysis is an effective process to identify a merger lawsuit that could undermine fair competition. A rule of thumb could give a visible contrast between the United States and Korea concerning a merger, granting simple comparison may not be accurate because of the huge difference in economy scales of the two countries; but as long as an entry analysis is concerned in merger matters, the US authority governing market competition is strict enough to allow mainly, on consent decision, divesture of assets and brands, while in Korea the majority of merger cases of conglomerate subsidiaries are likely to result in approval by the reason of the exception of failing company, regardless of entry analyses that report whether relevant entry barriers exist or not, and how high or low the barriers are.

금융지주회사의 자회사 은행에 대한 자본확충에 관한 법리적 고찰

한병영(Byoung-Young Han) 한국기업법학회 2009 企業法硏究 Vol.23 No.2

It is not sensible of a financial holding company to be reluctant to infuse capital to remedy its subsidiaries in unsound financial conditions, on the grounds of corporate separateness and shareholder's limited liability, while controlling the subsidiaries and receiving dividends from their profits. The source of strength doctrine. and the cross-guarantee provision in financial holding company system will ultimately result in contributing to vindication of capital infusion into subsidiary banks. The source of strength doctrine is substantiated through capital infusion into subsidiary banks. The doctrine of source of strength is materialized, denying corporate separateness, through regulation of limited liability, and the cross-guarantee provision may be referred to as what the source of strength doctrine is realized as both horizontally and vertically. A disparity in Korean Financial Holding Companies Act might emerge, however, for the Act provides only the rights for the holding company to infuse capital into the subsidiaries, but no liability to do the same. But the discrepancy is not grave enough to recognize the liability of capital infusion from the holding company, even though we apply the piercing corporate veil and the regulation of limited liability. Neither is it compatible with the present Korean law system to impose the liability of capital infusion by applying the theory of source of strength. while the holding company could be encouraged to bail out, at its discretion. subsidiaries in unstable financial status. The holding company could be allowed to choose to include its liability of capital infusion into the subsidiaries as one of business purposes in its incorporation articles ; when the liability is included. financial aids are legally imposed on the holding company when its subsidiary bank is at a financial stake, and the holding company will be subject to governmental sanction when it fails to abide by the provision in the articles. No similar theory in the American system was found that can be related to cross-guarantee in the Korean juridical system. Also property rights are likely to be infringed when cross-guarantee is legislated. The Management Guidelines in Korean Financial Holding Companies Act (Chapter 50, Section 2) can be best argued as what the doctrine of source of strength can be extracted from or based upon, but it leaves much to be desired to interpret the Guidelines as a definite ground from which the doctrine has been derived. Also Prompt Corrective Action, or the provision regarding supervision on the holding company (Chapter 36 through 38 of the Act), do not define such an express measure that orders the holding company to infuse capital into subsidiaries that do not meet requirements in capital adequacy ratio, which, along with Chapter 10 of Act on the Structural Improvement of the Financial Industry, hardly serves a solid basis of the source of strength doctrine. As of April. 2009, when the Korean government pours public funds to help domestic banks improve their capital adequacy ratio, the management crisis should be handled by the holding company itself, not letting its subsidiary banks be rescued by means of social expense costs. The Korean financial system should first head for a system in which the financial holding company can manage independently and account accordingly. Then the source of strength doctrine and the cross-guarantee provision(system) should be introduced later in the future into the Korean judicial system, and legislation of such systems to impose on or to protect the financial holding company is not yet desirable.

투자권유규제 규범과 사기금지 규범의 연결 규제

한병영(Han, Byoung Young) 한국증권법학회 2010 증권법연구 Vol.11 No.2

증권시장에는 깨끗한 손만 들어와야 한다. 투기가 허용되지만 사술행위는 불허된다. 증권시장에서 도덕적 규범은 증권의 판매자나 수요자 모두에게 적용된다. 도덕적 규범의 준수는 증권시장이 깨끗하게 유지되고, 공정하고, 효율적으로 작동하기 위한 전제조건이 된다. 허위, 사술, 책략, 위계, 부정행위와 같은 부정한 투기심에서 발로되는 행위가 난무할 때는 증권시장의 붕괴를 막기 위해서 도덕규범을 넘어 법적 규범이 개입될 필요성이 생긴다. 사기, 횡령과 같은 전통적 증권사기뿐만 아니라 오늘날 시세조종, 내부자거래를 포함하여 광범위한 신종 증권부정행위가 증권시장을 위협하고, 정보의 비대칭관계에 있는 투자자를 상대로 증권 판매자는 이런 행위를 시도하려고 한다. 이에 대응하여 법적 규범도 포괄적이고 효율적일 필요가 있다. 자본시장법은 제178조에 포괄적 사기규제 규범을 마련해 놓고 있다. 광범위한 그물망을 마련하려다 보니 일반적, 추상적, 불특정의 개념들을 법적 용어로 사용하고 있다. 부정한 계획, 수단, 기교, 위계 등이 그렇다. 사기적 부정행위자는 민·형사상 책임을 지고, 형사책임은 일반 사기죄보다 형량이 높고 위험범의 형식으로 되어 있고, 시장사기이론에 의하여 인과관계가 추정되거나, 요구를 하지 않는 판례도 등장하고 있다. 책임의 양이 이렇게 커질 경우에는, 시장환경에 따라 포괄적인 규제로 대응한다고 하더라도 규범을 명확히 하기 위한 노력이 필요하다. 해석지침, 판례, 학설이 이런 노력의 유형이 될 것이다. 제178조의 포괄적 사기금지 규범의 해석 기준을 마련하고, 규범의 실효성을 제고하기 위한 동기에서 제46조 이하의 투자권유규제 규범과 연계하여 제178조를 해석하고 법집행도 연계하는 방안이 가능할 것인지를 고려하게 되었다. 양 규범은 위법행위의 태양이 상호 동일하거나 유사하고, 입법목적도 동일하고, 법문상 용어조차 동일한 부분이 발견된다. 양 규범을 상호 연계하여 집행하는 편이 규제의 편의성과 효율성을 제고하는 길이 된다고 본다. 먼저 제178조의 부정거래 유형, 즉 부정한 수단, 계획, 기교, 허위표시, 누락, 위계를 해석하고, 다음으로 제46조 이하 적합성원칙 및 적정성원칙, 부당투자권유 금지, 설명의무를 해석하여 양 규범간에 공통점을 발견하고, 제46조 이하 투자권유규제 규범의 현저한 위반이 제178조의 사기적 부정거래행위로 악화될 수 있는 가능성을 고려하였다. 현저하게 부적합한 투자, 예컨대 무경험, 무지하고, 자금력도 불충분한 소비자에게 기대이익만 부추겨서 재산상 이익을 취득하려는 목적에서 권유한 경우라면 제46조 위반에 해당될 뿐만 아니라 나아가 제178조의 위계 또는 부정한 수단, 계획, 기교에 이를 수도 있을 것이다. 제178조 위반행위의 하나의 유형을 제46조의 적합성원칙에 위배한 것에서 찾을 수 있다. 이럴 경우 포괄적 사기유형인 부정한 수단, 계획, 기교의 해석기준이 제46조가 되기도 한다. 역시 제49조의 부당투자권유에 해당하는 허위사실 권유나 단정적 판단이나 오인 유발 등 왜곡 권유는 그 정도가 심할 때는 제178조의 허위표시나 위계 또는 부정한 수단, 계획, 기교에도 해당될 여지에 대해 검토할 필요가 있으며, 양자의 규범을 연계하여 집행할 필요가 있다. 제47조의 설명의무는 적합성원칙과 마찬가지로 투자권유규제 규범이지만 적합성원칙이 투자자의 투자환경에 따라 달라지는 특수적?주관적 의무라고 한다면, 설명의무는 상품내용 자체의 소개에 주안점을 두는 일반적?객관적 의무라고 볼 수 있다. 허위·왜곡 설명이 부당이득을 취할 동기가 있고, 거의 기망성에 가깝도록 위반 정도가 현저할 때는 제178조 상의 허위표시, 누락, 위계, 부정한 수단, 계획, 기교의 사기적 부정거래행위로 전환될 가능성이 있다. 제178조의 사기적 부정거래행위의 한 유형을 제47조 설명의무 위반행위에서 찾자는 것이다. 이럴 때 제47조는 역시 제178조의 하나의 해석기준이 되기도 한다. 규범 상호간 연결 규제는 날로 점증하는 교묘한 부정행위에 대처하는데 상승효과를 가져 올 것이다.

부동산정책의 철학적 기초

한병영(Han Byoung Young) 한국부동산학회 2005 不動産學報 Vol.25 No.-

1. CONTENTS (1) RESEARCH OBJECTIVES This study aims to lay the ground for the government's anti-real estate speculation measures in Korea. The government's comprehensive anti-speculation measures raising property holding taxes on owners of more than one home may be more effective than any other ways. The measures, highlighting stiff tax hikes for home and land owners may cut demand in the short term, bringing down home and land prices. But the expansion policy of home supply may be not much more effective. Such a policy as anti-speculative demand can't be fully implemented through the disturbance. To overcome all difficulties for implementing real estate policy, the government should have the philosophic ground. (2) RESEARCH METHOD theoretical and empirical analysis (3) RESEARCH RESULTS About 890,000, or 5 percent, of the total 17.77 million households own two or more houses in Korea. The multi-home owners held an average of 2.66 houses with the number of their houses standing at 2.37 million, which accounts for 21.2 percent of the total 11.19 million homes. 9.71 million, or 54.6 percent, of the total households have their own houses. However, the remaining 45.4 percent do not have their own houses, while just 5 percent of the total households own two or more houses. This study highlights the disparity in ownership of houses between the rich and the poor. I think this disparity comes from the speculative demand. Therefore, anti-speculative measure should take action to dissolve the disparity. Korean government should attempt to curb speculative demand by slapping prohibitive taxes, while increasing supply for end users. The government also should do well to reduce acquisition and registration taxes to protect non-speculative consumers in contrast to far heavier property and capital gains taxes on owners of more than two homes. Creating a small new town in southeastern Seoul appears to reflect the soaring demand for large, luxurious apartments among the mid- to high-income bracket. The supply-side approach is necessary to stabilize housing prices, but requires extra caution not to add fuel to the already raging speculative fervor. 2. RESULTS Korean government's real estate policies should be enhanced to clamp down on property speculation, because the policies were too weak and ineffective to rein in rising real estate prices. I support restricting real estate transactions by multi-houses owners if necessary to control speculation. The heavier taxes for multiple homeowners should be introduced to let multi-houses owners to sell their houses by themselves. The comprehensive anti-speculation policy, which aims to balance both demand and supply factors and is supplemented by financial devices should be implemented. But the issue is whether the government can beat speculators. 3. KEY WORDS real estate policy, anti-real estate speculation, speculative demand, anti-speculation measure, bubble of home prices

지방도시재생사업의 개선방안에 관한 연구

김상현(Kim Sang Hyun),한병영(Han Byoung Young) 한국부동산학회 2008 不動産學報 Vol.33 No.-

  1. CONTENTS<BR>  (1) RESEARCH OBJECTIVES<BR>  This researcher suggests the creation of the Organization of Provincial City Regeneration, which is in charge of the urban regeneration for Provincial city to accomplish the Korean urban regeneration program.<BR>  (2) RESEARCH METHOD<BR>  This study use legal institutional approach that traditional wrting method of law paper, literature investigation and legislation investigation etc.<BR>  (3) RESEARCH RESULTS<BR>  Currently the system for regional medium and small cities" vitalization does not have strengthen mutuality connection between currently schemes and citizen! s consensus for regional medium and small cities! vitalization. And it does not have substantial schemes, like an ordinance for improvement of regional member! s partnership and regulation of regional medium and small city vitalization general plan.<BR>  2. RESULTS<BR>  This study propose systematic improvement of strengthen mutuality connection between currently schemes and citizen"s consensus for regional medium and small cities" vitalization. Especially, It is need to provide that an ordinance for improvement of regional member"s partnership, regulation for establishment of regional medium and small city vitalization general plan. And It is need to promote a nongovernmental capital"s participation. Finally, this study propose successfully accomplish currently system like enterprisecity, innovationcity, etc.