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金汶在(Moon-Jae Kim) 한국기업법학회 2008 企業法硏究 Vol.22 No.4
Viatical settlements consist of the buying and selling of life insurance policies of terminally ill policyholders. Viatical settlement agreements arose from the need of terminally ill persons to obtain funds to pay exorbitant medical expenses caused by the rising costs of health care in USA. The insured is paid a lump sum of money and the viatical settlement company obtains the right to receive the death benefits of the policy when the individual dies. The viatical settlement business emerged in 1989 with the company engaging in this type of transaction. This note deals with the following contents. Section Ⅱ discusses the history and characteristics of the industry. Section Ⅲ explores advantages and disadvantages of the availability of the viatical settlement option, and provides an in-depth examination of the operation of viatical settlement companies. It discusses the process by which an individual and a viatical settlement company enter into a viatical settlement, including purchase criteria, risks assumed by the viatical settlement company. Section Ⅳ explores the theory of viatical settlements as security transactions regulated by the SEC. Therefore this section considers the classification of viatical settlement as securities for purposes of the Securities Laws. Section Ⅴ examines the Viatical Settlement Model Act and Model Regulation proposed by the National Association of Insurance Commissioners (NAIC). Because most states have modeled their legislation after the National Association of Insurance Commissioners' Model Act and Model Regulation. Section Ⅵ is the conclusion of this paper, and discusses the influence that the viatical settlement in USA experts on the related legal system in KOREA.
生命保險契約의 轉賣에 대한 國內法的 受用可能性과 限界에 관한 硏究
金汶在(Moon-Jae Kim) 한국기업법학회 2009 企業法硏究 Vol.23 No.2
Viatical Settlements consist of the buying and selling of life insurance policies of terminally ill policyholders. Viatical Settlements arose from the need of terminally ill persons to obtain funds to pay exorbitant medical expenses caused by the rising costs of health care in USA. In general. the transaction is comprised of a third-party viatical settlement company paying money to a terminally ill person for the rights to receive death benefits from his or her life insurance policy. The individual is paid a lump sum of money and the viatical settlement company obtains the right to receive the death benefits of the policy when the individual dies. In USA. the viatical settlement industry is regulated both as the practice of insurance by the state insurance commissioner and as a security transaction by the Securities and Exchange Commission (SEC). This paper has the object to explore whether the viatical settlement can be imported or not in Korea. Therefore, this paper deals with the following contents. Section Ⅱ discusses the basic legal theory of the viatical settlement. Section Ⅲ explores whether the insured can alienate or not a life insurance policy to a third-party under the legal system in Korea. For this issue, this paper examines the Insurance Law and the Insurance Business Act and Capital Market and Financial Investment Business Act of Korea. According to the conclusion of the examination, we can import the viatical settlement without the legal obstacles in present legal system. Section Ⅳ explores the limitation that viatical settlement business has. Section Ⅴ is the conclusion of this paper, and discusses what are the necessary restrictions as it is imported in Korea.