우리나라 주주대표소송의 현황과 문제점 및 개선방안에 관한 소론 -소제기권자에 관한 논의를 중심으로-

박정국 ( Jeong Kuk Park ) 홍익대학교 법학연구소 2013 홍익법학 Vol.14 No.2

Derivative Suit is prescribed the current Commercial Code from Article 403 to Article 406 and 6 of Article 542 Section 6 as system to recognize accountability for the director of the company to shareholders. Namely This is the system to expand the standing to sue of accountability to the minority shareholders of the company wish to protect minority shareholders and improve the transparency and accountability of the company. Now It can be a problem of being able to admit a double derivative suit or multiple derivative suits with respect to standing to sue can be extended as far as shareholders of the parent company of company belongs to the directors concerned. The past, the Department of Justice effort to introduce a double derivative suit in the Amendments to the Commercial Code in 2007, but eventually the discussion was collapsed because the opposite of politics and financial, and discussion was no introduction ever since. Now Park Geun-hye was elected in the 18th presidential election was proposed to be a commitment on the part of the policy that be able to introduce a multiple derivative suits in order to realize the democratization of the economy. It must have been very inspiring true in reaffirmed that the expansion of standing to sue requires in derivative suit. Besides revised Commercial Code on April 14, 2011 has stipulated the forced sale claims of minority shares by controlling shareholders and directors` liability immunities by incorporation in 24 of Article 360 and Article 400. This is able to be judged as weaken significantly legal means of minority shareholders to collateral transparency and accountability of the company. And so it was necessary to expand of standing to sue as realistic complement. Therefore, I would like to seek to problems and improvement after check status of the derivative suit as a way of comparative legal in this paper.

금융혁신을 위한 핀테크 서비스의 보안 리스크 대응방안 연구

박정국 ( Jeong Kuk Park ),김인재 ( Injai Kim ) 한국지식경영학회 2015 지식경영연구 Vol.16 No.4

Fintech, which means the convergence of finance and information technology, becomes a hot topic in the financial sector. Through innovative activities on financial services, ICT(Information and Communication Technology) is integrated into the overall financial industry, and a new form of financial services could be expected to improve the existing financial system. On the other hand, fintech services are relatively vulnerable to security issues. Due to the process simplication and the channel fusion, the leakage of personal and financial informations, authentication bypass, phishing, and pharming are getting more concerned. In this study we investigated the security risk of fintech services in the viewpoints of service provider, technology adoption, and security policy. The possible countermeasures to reduce those risks are suggested because security is an important criterion for selecting financial services. This study basically o!ers quantification of the potential security risks and step-by-step control measures about business processes in the fintech services. The suggested security model includes user authentication, terminal security, payment information protection, API(Application Programming Interface) security, and abnormal transaction monitoring. This study might contribute to an understanding of the security risks and some possible measures for mitigating those risks on the practical perspective.

금융분야의 블록체인기술 활용과 정책방향에 관한 연구

박정국(Jeong Kuk Park),김인재(In jai Kim) 한국IT서비스학회 2017 한국IT서비스학회지 Vol.16 No.2

The financial industry recently introduces several issues for utilizing the blockchain technology as the core infrastructure of future finance. Blockchain, first introduced as the underlying technology of Crypto-currencies, Bitcoin is a technology that can ensure the integrity and reliability of data by verifying, recording, and storing data jointly in the network without a central administration organization or a manager. This blockchain has its potential power as a technology for issuing digital currencies, providing transparency, and securing record management, that is expected to be useful in the financial sector. At the same time, considering the characteristics of financial transactions which emphasize privacy, questions are raised about whether a blockchain structure in which information is distributed and shared among participants can be successful. How will we support to implement the potential of the blockchain in order to change the paradigm of the financial industry? How can we manage the side effects of blockchain effectively? Such a policy discussion is necessary. This study introduces the meaning of the blockchain technology, various utilization attempts, and possible problems facing technology from the viewpoint of financial industry, and suggests a policy direction for utilizing this technology as a catalyst to the progress of the financial industry or as a new technology power.

중국 회사법상 1인회사와 법인격부인의 법리에 관한 소고

박정국 ( Jeong Kuk Park ) 단국대학교 법학연구소 2014 법학논총 Vol.38 No.3

China were defined the sole possession company of the country with type of peculiar one man company in the Companies Act, prior to amend the Companies Act October 27, 2005. But this has been caused legal injustice because of excluded the establishment of one man company by private capital. Therefore China Company Law that amended by 2005 and implemented from January 1, 2006 was provided the clear special rules about one man company of limited liability as to the purpose to addresses this problem, protect investment parties and keep seamless management of company. This legislation to recognized the establishment of one man company of limited liability will give help a privately held company to the legal protection. Shareholders of many companies abuse the limited liability since China enacted and conducted the Companies Act 1993. As a result, The problem situation that applying the damage to the interests of community public and company creditors were frequent in China. But because there was not direct regulation for problem solving in China Company Law China was introduced legal principles of disregard of the corporate fiction in Companies Act 2006 to overcome this. The introduction of legal principles of disregard of the corporate fiction like this will be responsible for effectively function as in prohibit the abuse of limited liability of shareholders and enhance a market economy system. Therefore I would like to analysis;review and evaluate one man company of limited liability and legal principles of disregard of the corporate fiction to be introduced in Chinese Companies Act 2006, focusing on the provisions of the Companies Act 2006.

경영판단의 원칙에 관한 일본 판례의 검토

박정국 ( Jeong Kuk Park ) 홍익대학교 법학연구소 2013 홍익법학 Vol.14 No.4

business judgement rule, 즉 경영판단의 원칙이란 회사의 내부경영에 대한 판단은 회사의 전권사항으로서 그에 대한 법원의 판단은 일종의 간섭이 될 수 있으므로 법원 스스로가 회사의 경영을 이사회의 전권사항으로 인정해 주는 것을 말한다. 이 원칙은 미국의 판례법상 생성·발전된 것으로 이사의 책임을 직접적으로 감경시키는 것은 아니고 이사의 선관 주의의무를 완화하여 이사의 책임을 면제시키는 기능을 하고 있다고 볼 수 있다. 또한 미국법원은 이 원칙을 무제한적으로 적용하는 것이 아니고 회사의 이익을 보호할 필요성이 클때에만 적용하고 있다. 우리나라는 이 원칙을 명문으로 규정하고 있지는 않고 대법원 및 하급심 판결을 통해서 이 원칙에 관한 입장을 정립해 가고 있다. 우리 대법원은 이사에게 업무집행과 관련된 광범위한 재량권을 부여하여 회사경영상 다소 위험이 따르는 업무를 집행하더라도 주의의무를 준수한 이사의 행위에 대해서는 손해에 대한 결과책임을 부정하는 방법으로 이 원칙을 인정하고 있다. 일본도 우리나라와 마찬가지로 직접적인 명문의 규정은 없고, 다만 회사법의 개별규정을 통해서 이사의 책임을 규정하고 있다. 종래 일본 법원은 이사의 주의의무를 엄격하게 해석하여 주의의무위반의 책임을 폭넓게 인정해 왔었다. 그러나 이러한 법원의 입장은 이사의 경영판단에 내재되어 있는 특수성을 고려하지 않았다는 점에서 문제가 제기되었다. 따라서 근래 일본 법원은 입장을 변경하여 일정한 범위내에서는 이사가 과감하게 모험적인 경영판단을 할 수 있도록 주의의무를 완화해서 해석하고 있다. 또한 이 원칙을 도입하여 입법할 것인가에 관해서는 종래부터 활발한 논의가 있어왔지만 일본 학계에서는 여전히 견해가 대립되고 있다. 미국법상 이 원칙은 일반적으로 이사의 경영판단에 법원이 개입하지 않는 것으로 인식된다. 그러나 일본은 미국과 같은 태도를 취하지는 않고 오히려 법원이 이사의 주의의무위반여부를 심사하는 것을 원칙적으로 긍정한 다음 그 안에서 이사의 경영판단을 존중하는 방식을 취하고 있다. 따라서 본고에서는 이 원칙과 관련하여 일본에서 제기되고 있는 견해들을 크게 네 가지로 구분하고 각 학설과 관련판례를 살펴본 이후 관련판례를 통하여 법원의 판단을 검토해 보고자 한다.

중국 보험소비자보호법제의 문제점,개선방안 및 시사점에 관한 소고

박정국 ( Jeong Kuk Park ) 단국대학교 법학연구소 2015 법학논총 Vol.39 No.3

One of the characteristic changes in the China insurance since the global financial crisis will be referred to the strengthening trend of protection for insurance consumers. China has strengthened the protection of insurance consumers through the revision of 「China Insurance Law」in 2009. Especially, China has transformed 「China Insurance Law」the advanced-type insurance legal system to further strengthened protection for policyholders and insured by way of invalidated the agreement provisions to be not described and of switched the scope of notice to the passive response duty. Besides China has reinforcing the protection of insurance consumers through the amendment of 「Consumer Rights and Interests Protection Law」in 2014. Especially, China has further expanded the scope of protection of insurance consumers by specifying the regulations for the new trading scheme such as internet·TV in accordance with the actual needs. But China has not professional legislation for protection of insurance consumer except for the 「China Insurance Law」and 「Consumer Rights and Interests Protection Law」and depends on individual regulatory system such as regulations or notice. Further, Even the current these laws has the number of the need part for revision. Therefore I think that Chinese authorities should be the legislative supplement for integrated legislation in order to avoid the infringement phenomenon of the rights of insurance consumers to be able to become more serious with the development of insurance business.

2013년 중국 개정 소비자권익보호법상 경영자의 의무에 관한 소고

박정국 ( Jeong Kuk Park ) 영산대학교 법률연구소 2014 영산법률논총 Vol.11 No.2

The Chinese government has passed a Revised Bill of the Chinese Consumer Rights and Interests Protection Law at the 5th meeting of the 12th Standing Committee of the National People’s Congress on October 25, 2013 and it became effective from March 15, 2014, in order to strengthen a advanced consumer rights and interests protection. Several provisions through this revision was modified and established, especially strengthening provisions of obligations such as mandatory of recalls-return within 7 days-cancellation of the mail order and the mandatory provisions of the privacy occupies a large part of the amendment. Therefore I would like to analyze and review the main content relating to the managerial obligations under the Revised Chinese Consumer Rights and Interests Protection Law in 2013 in this paper. I think that this paper will be able to provide foreign corporations that have business operations in China to the framework of the legitimate business activities and foreigners living in China to legal remedies for infringement.

의결권행사를 위한 주주간 계약의 고찰

박정국 ( Park Jeong-kuk ) 한국외국어대학교 법학연구소 2012 외법논집 Vol.36 No.1

Shareholders’ agreements means that they are the various agreements entered into between shareholders to ensure the supremacy of shareholders for the company’s policy decision, they are aimed at vouch shareholders’ agreements on voting, give the opportunity to exert influence for management of the company to minority shareholders and protect the rights of minority shareholders from improper exercise of majority shareholders takeover. The target of a shareholders’ agreements varies depending on the circumstances of each company. Especially, Matters relating to the voting rights of shareholders is about fundamental rights of shareholders, our current 「Commercial Code」 prescribes agency event of voting, there are no provision of voting agreements and voting trust to be regulated by U.S. State Act, so there has been a discussion of whether the practical need for legislation in the current 「Commercial Code」 is or not. But, Though revised 「Commercial Code」 of 2011 prescribed issuance of kinds of stocks and of stocks in voting rights is not or limited, but prescribed matters relating to the exercise of various voting, it was a reaffirmed amendment of the existing position to denied a collective exercise of voting rights due to shareholders’ agreements. But It is an undeniable fact that practical necessity for unified voting exercise as shareholders’ agreements is great in Korea’s corporate governance, and even if the contract was recognized, if there are not regulations such as U.S. State Act, because it causes problems to cannot claim contractual effect about company, but claim contractual effect between contracting parties, it is necessary to introduce shareholders’ agreements in the our 「Commercial Code」. Therefore, I would like to discussed in the need for legislation in this paper.

타인명의의 주식인수와 주주명부기재의 효력에 관한 검토 - 대법원 2017. 3. 23. 선고 2015다248342 전원합의체 판결을 중심으로 -

박정국 ( Park Jeong-kuk ) 한국외국어대학교 법학연구소 2020 외법논집 Vol.44 No.2

This article is a critical annotation on the famous decision of Korean Supreme Court, sentenced en banc on March 23rd 2017(“the related decision”). The related decision judged a considerably meaningful judicial decision which changed the previous judicial decision. The previous judicial decision judged that an equitable shareholder could exercise the right of shareholder in case a registered shareholder was different from an equitable shareholder and that Article 337 (1) of the Commercial Act only applied to shareholder of company. In other words, a company acknowledged that an equitable shareholder exercised their rights. However, the related decision judged that a registered shareholder could exercise the right of shareholder in case registered in the shareholder registry and that Article 337 (1) of the Commercial Act is applied to both shareholder of company and company itself. In other words, a company denied that an equitable shareholder exercised their rights. Besides, the related decision judged that a company could not deny a registered shareholder’s exercising of rights whether a company knew the existence of an equitable shareholder or not. Furthermore, a company could not allow an unregistered equitable shareholder to exercise the right of shareholder. But, the related decision does not conform to current commercial law, general judicial logic and the current status of corporation of Korea.

정보보호 : 정보보호 성숙도와 조직성과 간의 정보보호 정책의 효과분석

박정국 ( Jeong Kuk Park ),김인재 ( In Jai Kim ) 한국정보처리학회 2014 정보처리학회논문지. 컴퓨터 및 통신시스템 Vol.3 No.9

The absence of proactive information security management to ensure availability, accessibility and safety of information can bring serious risks to customers as well as to the organization’s performance and competitiveness because improper security management undermines business continuity. This study analyzed the maturity of information security which affects the organizational performance. Through the literature reviews, a research model using the organizational performance as the dependent variable, the risk management process maturity and risk assessment process as independent variables and the information security policy indexes as moderate variables was proposed, and an empirical analysis was made on the basis of survey. The results showed that there was a high causal relationship between information security maturity and organizational performance. However, even if the proportions of information security staff ratio and the information security budget ratio increased, information security maturity did not affect organizational performance. It suggests that information security maturity affects organizational performance, but information security regulations have their limitation as being a catalyst to improve organizational performance.