외국환거래법상 제3자지급 규제의 연혁 = The history of legislation regulating third party payment/receipt in Korea`s Foreign Exchange Control Act

다국어 초록 (Multilingual Abstract)

The Foreign Exchange Control Act of Korea has a unique regulationwhich imposes reporting obligation on Korean residents when they remit/receivefunds to/from a resident or nonresident who is not a counterparty of atransaction. Applying this regulation to actual cases is never easy because itsliteral application may lead to unacceptable results from a common senseperspective. First, determining “a counterparty of a transaction” is not as easy asone may initially think. Next, it is very difficult to understand why settlementby or through agents should be regulated and why a settlement companylegitimately engaging in business should be regulated. Above all, it is hard tounderstand why this regulation is necessary to control foreign exchange. I traced the legislation history of this regulation, and eventually foundthat this regulation might be a product of misunderstanding and human error. There is a big difference between Japan`s 1979 foreign exchange control lawsand the corresponding Korea`s 1991 laws which were modelled on the 1979Japanese laws. Under section 17 of the 1979 Japanese Foreign ExchangeControl Act and the 1980 Ministerial Decree on Special Settlement Methods,Japanese residents had an obligation to report only when they remitted/received funds to/from other residents who were not contracting parties for the settlementof transactions between residents and nonresidents. However, under section 18of the 1991 Korean Foreign Exchange Control Act, a Korean resident had anobligation to report not only when they remitted/received funds to/fromresidents but also when they remitted/received funds to/from nonresidents. Asa result of this legislation, even cross-border remittance/receipt by or throughlegitimately authorized foreign exchange banks were included in restricted anddiscouraged behaviors. It seems that people who were involved in amending the KoreanForeign Exchange Control Act before 1991 might not have correctly understoodthe purpose of section 22 (DAESANG JIGEUB) of the then effective Act whichprohibited HWANCHIGI, thus unintentionally enlarging regulated behaviors whenthey paraphrased the wording in section 22 of the old Act to section 18 of thenew Act. As a result, Korea came to have a law regulating even cross-borderremittance/receipt by or through foreign exchange banks. However, thislegislation is far from the original purpose of regulating HWANCHIGI.

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