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.

구조화금융과 특수목적기구

박훤일 동의대학교 경제경영전략연구소 2003 經濟經營硏究 Vol.1 No.1

Structured finance means any transaction that makes use of a special purpose vehicle (SPV). "SPV" is a term widely used in corporate restructuring in the aftermath of the foreign exchange crisis in 1997. Take an example of asset-backed securitization (ABS). An originator selects a pool of assets and conveys it to an SPV, Then the SPV floats the securities in the capital market, whose debt service will be secured by the cash flows from the underlying assets. In this transaction, the SPV is a paper company for the purpose of "bankruptcy remoteness". In the United States, a trust, partnership or corporation is used as the vehicle. In Korea, this kind of paper company was usually regarded as illegal. But the situation has dramatically changed after the so-called IMF crisis. We witnessed the mushrooming of a variety of SPVs in the process of corporate restructuring. Mutual funds, corporate restructuring company (CRC), corporate restructuring vehicle (CRV), real estate investment trusts (REITs) are examples among others. However, the discovery that Enron Corporation created many special purpose entities (SPEs) to hide assets and debt form the general investing public gave rise to a distorted view of the uses and legitimacy of structured finance, The general perception was that structured finance and SPEs serve no real economic purpose but were used to mislead the investors. But structured finance has been a sound risk management tool, dating back to the early 1970s. Mortgage-backed securities (MBS), asset-backed securities (ABS), a project company in the non- or limited recourse financing and a special purpose subsidiary for the purpose of risk management are products of structured finance. The Sarbanes-Oxley Act instructed the Securities and Exchange Commission (SEC) to tighten the disclosure requirements of off-balance-sheet transactions and to produce a report on the activities and regulations of SPEs. Structured finance has unparalleled merits as a financial scheme like transparent transactions and inherent checks and balances protecting the interest of all parties involved, from seller to investor.

실존 인물의 모델화와 인격권 보호

박훤일 영산대학교법률교육연구원 2006 영산법률논총 Vol.3 No.2

These days we can see a considerable number of movies based upon real life stories. Take an example of foreign-made movies, there are "Malcom X"(1992), "Shindler's List"(1993), "Nixon"(1995) and "Ray"(2004), among others. In Korea, we can count "Mr. Gam's Victory"(2004), "Rikidozan: A Hero Extraordinary"(2004), "Mal-a-thon"(2005) about an autistic young man, "Barefoot Gi Bong"(2006), and "Blue Swallow"(2006) regarding the first female pilot in Korea, Park Kyungwon. This phenomenon gives rise to a series of questions: - How to deal with some discrepancies between the historical facts and the movie-maker's story line or description of characters in the movie; - How much to ensure the freedom of expression in the movie-making against the appropriation or commercial use of the names and likenesses of real people; and - How to provide remedies to the affected people on account of alleged defamation or merchandising. Remedies include criminal actions in defamation, civil damages in tort such as threatening the right of personality. The United States courts have developed the concept of the right of publicity, which protects the names, images, voices, other likenesses of the celebrity like an intellectual property right. It would be unfair to allow unauthorized people gain economic benefits by means of commercial use of names and likenesses or deceptive appropriation of the identities of celebrities, Therefore, the affected people should be provided with the right to control the use of their names and images for commercial purposes, including movie-making. While the right of personality is protected on the ethical ground, the derivative right of publicity is usually invoked like an intellectual property right of celebrity because their fame could be treated as property. The concept of the "right of publicity" was first introduced into the Korean courts when a Korean manufacturer's trademark of "James Dean" was disputed by the American movie star's survivors. As Professors Dogan and Lemley asserted in their article, "What the Right of Publicity Can Learn from Trademark Law"(58 Stan. L. Rev. 1162), copyright is the wrong analogy because there is no utilitarian cause in promoting and marketing celebrity images. Though copyright's fair use doctrine involves trade-offs between the interests of original creators and the users of their creative works, the right of publicity has no similar trade-offs. On the contrary, the right of publicity protects a celebrity's interest in her name and likeness, much as trademark law protects a business's name and other trademarks. Movie stars, talents, pop singers and professional sportsmen need to prevent commercial use of their names and likenesses that are likely to confuse the public, to dilute or merchandise their reputation rather than monetary incentives. On the other hand, what types of remedies could be provided to non-celebrity? They may resort to causes of action such as privacy infringement, or libel or defamation. It is noteworthy that, in November 2006, some lawmakers in the Korean National Assembly initiated to amend the Copyright Law in order to include the property-like right of images of celebrities. As mentioned before, the celebrity identity or images are quite different from their commercialized character. It's because the celebrities have done little to create or improve their own identity or images. Once such a right is protected like a property right, it might discourage cultural and creative activities using celebrity names, images and so forth. In conclusion, it would be better to treat the right of publicity like trademark rather than copyright. Thus any confusion, dilution or merchandising of celebrity identity in the context of business transactions will be controlled. Then it could lead to a win-win resolution in this diversified borderless world which is connected by the Internet or satellite broadcasting service. The more the citizens around the world can enjoy the Korean media content on celebrities, the longer the current Korean Waves will last.

Infrastructure in North Korea

Park. Whon-il 경희법학연구소 2015 KHU 글로벌 기업법무 리뷰 Vol.8 No.1

Ordinary Wage at Issue

Park. Whon-il 경희법학연구소 2013 KHU 글로벌 기업법무 리뷰 Vol.6 No.2

Mineral Resources in North Korea

Park. Whon-il 경희법학연구소 2015 KHU 글로벌 기업법무 리뷰 Vol.8 No.1

Social Commerce in Korea

Park. Whon-il 경희법학연구소 2014 KHU 글로벌 기업법무 리뷰 Vol.7 No.2

Government Access to Personal Data

( Park Whon-il ) 경희대학교 법학연구소 2016 KHU 글로벌 기업법무 리뷰 Vol.9 No.2

Jeonse-Unique Housing Lease in Korea

( Park Whon-il ) 경희대학교 법학연구소 2016 KHU 글로벌 기업법무 리뷰 Vol.9 No.2

Recent Amendments to ICN Act

Park. Whon-il 경희법학연구소 2014 KHU 글로벌 기업법무 리뷰 Vol.7 No.1