미국 증권규제법상 중요성 판단기준

손창완 ( Sohn Chang-wan ) 한국외국어대학교 법학연구소 2013 외법논집 Vol.37 No.2

A market where securities of financial investment instrument are trading is called ‘Securities Market’. The securities market has high possibility of ‘market failure’ based on the attribute of securities. The reason is that there is strong possibility to create information asymmetry between parties who trade securities, so special regulations are demanded for investors protection. Financial Investment Services and Capital Markets Act (hereafter referred to as ‘FCA), which rules securities trading, applies all kinds of regulations to issuance and distribution of securities for prevention of market failure that is caused by information asymmetry in securities market. As one of the regulations, disclosure regulation is established to provide sufficient information that is necessary for reliable estimates of investment to the investors. Moreover, “no one shall commit attempting to earn money or any interest in property, by using a document containing a false description or representation of a material fact, or an omission of a description or representation of a material fact necessary for preventing others from being misled, or any other description or representation (FCA 178 (1) 2).” This provision is established in reference to the provision of anti-fraud under Securities Exchange Act Rule (hereafter referred to as ‘Rule’) 10b-5. In accordance with the Rule 10b-5(b), “it shall be unlawful for any person, directly or indirectly, by the use of any means or instrumentality of interstate commerce, or of the mails or of any facility of any national securities exchange,” (b) “to make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading in connection with the purchase or sale of any security.” As shown in the provision of FCA and Rule 10b-5(b), misrepresentation of a material fact is prohibited in securities market. US securities regulations introduces the concept of ‘materiality’ for securities regulations to avoid deficiency or excess of information, eliminating information asymmetry and providing necessary information to the investors in the market, as well as reducing heavy duty of disclosure to a company in accordance with the criteria. Therefore, the criteria determining the materiality of the information are very important under securities regulations. Concerning the ‘materiality’ of information, US have established legal principles for specific judgment criteria through judicial precedents. Therefore, this paper introduces general standard determining the materiality as established in US, examines how the general standard is specifically applied in accordance with the types of information, and contains the author’s opinion about the standard determining ‘materiality’.

해외 사례 소개 : 영국 경쟁위원회의 Lloyds TSB Group plc/Abbey National plc 합병 건에 대한 결정 - 주요 내용 소개 및 위 결정이 주는 시사점 -

손창완 ( Chang Wan Sohn ),민병서 ( Byung Suh Min ) 연세대학교 법학연구원 2006 法學硏究 Vol.16 No.2

공정거래법상 기업결합의 규제대상 행위유형에 대한 고찰

손창완 ( Chang Wan Sohn ) 연세대학교 법학연구원 2008 法學硏究 Vol.18 No.4

Generally mergers conducted for purpose of corporate existence and growth may bring higher efficiency to the market which the consolidating companies belong to, but they are likely to cause anticompetitive effect. For this anticompetitive side effect mergers are under considerable regulation world-wide, and Korea also prohibits mergers which substantially restrict the competition in the certain line of business. Types of mergers prohibited by Korean Antitrust and Fair Trade Act(hereinafter Act) are listed in Article 7. Also, according to Korean Merger Guidelines(hereinafter Guideline) established by Korean Fair Trade Commission(hereinafter FTC), formation of control is required between the consolidating companies to the extent that the companies could be treated as single competing unit. Types of mergers according to the Act and the requirement of formation of control according to the Guidelines are highly important factors in considering a merger since whether a merger is subject to the antitrust regulation is determined by those standards. Thus a merger which is not listed as the prohibited mergers stipulated in the Act will not be subject of merger examination, and even though the merger conforms to one of the prohibited types, it will not be deemed as the anticompetitive merger by the Fair Trade Commission if it lacks the requirement of formation of control. Hence this article will survey types of mergers which are subject of regulation under the Act and the requirement of formation of control with emphasis on provisions of the Act and the Guidelines, and it also will survey analyse decisions by Korean FTC on those matters.

우리나라의 변호사 조직에 대한 법적 규율

손창완 ( Chang Wan Sohn ) 연세대학교 법학연구원 2009 法學硏究 Vol.19 No.1

Attorney at law is a profession who holds position as a service-provider offering legal services in the legal-service market. Attorney at law may establish a law firm with other attorneys at law in order to provide legal service effectively. In the early 1990s still, the most common type of law firms were mainly small law offices. Whereas Korean lawsuits occurring from various areas have gotten more intricate as Korean economy grows and the state of affairs in Korean society becomes more complicated. Thus, those small law offices were no longer in capable of handling complicated legal cases. On the contrary, consumers of legal services were starting to demand general legal services and their tendency toward expectations for higher quality in legal services grew. Consequently from the late 1990s in order to provide overall and thorough legal services a group of lawyers began to form a law corporation or a joint law offices. A discussion as to these law firms would be first of all, about what types of firms are admissible for attorneys at law to perform legal practices jointly. Generally there are Lawyers` Act which regulates attorneys at law. It allows law office, law corporation, limited liability law corporation and limited liability law partnership as an organization for attorneys. The question would rise, however, whether attorneys at law may form different types of organizations other than listed above such as the corporation or partnership by provision under Korean Civil code and Commercial code. Secondly, the Lawyers` Act has some special regulations that only apply to law corporations, limited liability law corporation and limited liability law partnership that are different from the corporations or partnerships under provisions of the Civil and Commercial code. Therefore, there is a need to look over these differences in regulations as well. Furthermore, as the number of those organizations are increasing recently, there is a rising need toward the legal rulings against law firms` internal relations between partners along with external relations between partners and third parties(including clients) to be established concretely. So in this article, 1) What kind of law firms are admissible 2) details of regulations over law firms according to the Lawyers` Act will be mainly discussed.

법률서비스시장의 진입규제와 변호사가 전속적으로 제공하는 법률서비스의 범위(상(上))

손창완 ( Chang Wan Sohn ) 법조협회 2009 法曹 Vol.58 No.6

시장에 대한 경제적 규제에는 진입규제, 가격규제 및 품질규제가 있다. 자유시장경제 체제하에서는 어떠한 시장이든 개인 또는 법인의 판단에 따라 자유롭게 참여할 수 있는 것을 원칙으로 하고, 다만 시장의 실패가 발생하는 경우에는 정부가 시장에 간섭하고 규제하는 것이 정당화될 수 있다. 전문직이 제공하는 서비스는 시장에서 거래되는 다른 서비스와는 그 성질을 달리한다. 전문직 서비스는 장기간의 훈련을 통해서만 그 내용을 알 수 있기 때문에 일반인은 자신이 받을 서비스의 내용을 잘 알지 못하는 상태에서 서비스를 구매하게 된다. 위와 같은 전문직 제공 서비스의 특징으로 인하여 공급자와 수요자 간에 정보가 비대칭적인 경우가 많이 발생하고 이에 따른 시장의 실패가 문제된다. 전문직 서비스의 이러한 문제를 해결하기 위하여 전문직 서비스시장에 대해서 진입규제 장벽이 설치되는 경우가 많다. 전문직 서비스 시장의 진입규제는 (1) 일정한 자격이 주어진 자에 한하여 서비스를 제공하게 하는 자격제도와 (2) 일정한 자격이 없는 자가 해당 서비스를 제공할 경우 이를 제재하는 방법으로 이루어진다. 우리나라의 경우에도 「변호사법」에서 정한 일정한 법률서비스의 경우에는 일정한 자격 조건을 가진 자에 한하여 변호사 자격을 부여하고, 변호사만이 위와 같은 법률서비스를 전속적으로 제공할 수 있도록 규정하여 법률서비스시장에 진입규제를 가하고 있다. 이러한 법률서비스 시장의 진입규제를 설정함에 있어서는 어느 정도의 자격을 갖춘 자에게 변호사의 자격을 부여하여 법률서비스 시장으로의 진입을 허용하게 할 것인지 여부, 즉 변호사 자격제도와 관련된 문제와 위와 같은 자격을 갖춘 변호사가 전속적으로 제공하는 법률서비스의 범위를 확정하는 문제, 즉 진입규제의 대상이 되는 서비스의 범위가 중요한 법적 과제라고 할 수 있다. 따라서 본 논문에서는 우리나라의 변호사 자격제도에 대하여 변호사법상 규정을 중심으로 간단히 개관한 후, 변호사가 전속적으로 제공하는 법률서비스의 범위에 대하여 관련 법령의 규정 및 판례를 중심으로 살펴볼 것이다.

변호사의 제3자에 대한 윤리

손창완 ( Chang Wan Sohn ) 홍익대학교 법학연구소 2016 홍익법학 Vol.17 No.1

Attorneys perform legal practice by a mandate of clients or appointment of government and other public entities to act as legal agents on clients`` behalf. The relationship between a client and a lawyer is controlled under the law of agency where a client confers authorities on an attorney to conduct certain legal acts or function on behalf of the principal himself. Besides the duties imposed by the relationship with a client, attorneys are also guided and bound by Ethical Rules of the Korean Bar Association(KBA) and the Attorneys-at-Law Act. On the other hand, there is no duty to attorneys for persons other than clients unless he or she assumes liability under torts law and this is a general principle of civil law. The mission of any attorney-at-law shall be to defend fundamental human rights and realize social justice and Each attorney-at-law, as a legal professional of public nature, shall faithfully perform his/her duties and work to maintain social order and to improve the legal system in accordance with his/her mission. Due to the public nature of attorney’s work, it is necessary to impose duties to persons other than clients under some special circumstances. Especially, litigation cases are essentially disputes against third persons under the rules of adversary system. Under this system, there is a strong probability that third persons’ interests or rights can be infringed by counter-attorneys in the course of zealous representations. For this reason, The Model Rules of Professional Conduct(the “MR”) promulgated by the American Bar Association (the ABA) has specifiic rules on “Transactions with Persons Other Than Clients” as foolows: Rule 4.1. Truthfulness in Statements to Others Rule 4.2. Communication with Person Represented by Counsel Rule 4.3. Dealing with Unrepresented Person Rule 4.4. Respect for Rights of Third Persons In Korea, there are also specifiic rules for “Transactions with Persons Other Than Clients” in Attorneys’ Ethics Rules promulgated by the KBA but contents of the rules are very simple and relevant cases are few in comparison with those of U.S. In this light, it will be academically useful to examine and analyze the academic discussions on interpretation, and the various cases in U.S. states courts surrounding ABA``s MR on “Transactions with Persons Other Than Clients” for interpreting and revising KBA’s Ethics Rules. For this purpose, this paper, firstly, discusses on attorneys’ duty to third persons in USA, then examines its implication for legal ethics in Korea.

환상형 순환출자에 관한 회사법적 검토 -의결권 제한 가능성을 중심으로-

손창완 ( Chang Wan Sohn ) 한국상사판례학회 2013 상사판례연구 Vol.26 No.1

Circular shareholding is a form of mutual equity ownership by three or more companies, through purchase of shares or subscription od new shares. Circular shareholding occurs because of the ``Chaebol`` ownership structure, where the control power makes heavy investment on the highest-ranking company in the chain, which functions as the holding company within the Chaebol structure. If the controller does not have the sufficient shares within the highest-ranking company to exert control over core companies, lower-ranking companies come to invest in the highest ranking company or core companies, causing circular sharehlding. That is, circular shareholding can be seen as a form of ownership structure where the controller of Chaebol seeks to expand its control over the affiliated companies. Therefore, in Korea, circular shareholding has mainly been seen as a Chaebol governance problem related to Korean Fair Trade Act, and has been indirectly regulated by this act in the form of limitation in total amount of investment. However, circular shareholding should be seen as a form of mutual shareholding between companies, which is regulated by the Korean Commercial Act. Therefore, the relation of circular shareholding could be better understood form the Commercial Act`s viewpoint, rather than from the Fair Trade Act`s viewpoint, where policy considerations are more important. With this point in mind, this article examines the regislatiive intent and regulative range of the mutual shareholding regulations within the Korean Commercial Act. Also, this article analyzes ownership structure of the mutual shareholding and, then, What this structure causes problems from th viewpoint of corporate law. Finally, assuming that circular shareholding with such corporate law problems needs to be regulated by the Commercial Act, this article will examine if circular shareholding may be regulated through the limitations in voting rights within the present state of the law.

공정거래법상 기업결합의 관련시장 획정

손창완(Sohn, Chang-Wan) 원광대학교 법학연구소 2011 圓光法學 Vol.27 No.1

The Monopoly Regulation and Fair Trade Act in Korea prohibits mergers which substantially restrict competition in the line of commerce. The term "the act substantially restrict competition" refers to any of the practices that affect or threaten to affect the setting of price, quantity, quality, or other terms or conditions of trading in accordance with the intent of a certain enterpriser or an enterprisers' organization owing to reduced competition in a line of commerce. Market concentration, which is found based on market share of the company is a key indicator in determining anticompetitive effect due to mergers. In order to calculate market share of the company, it is necessary to specify the 'line of commerce' that is subject to calculation of the company's market share, and this is known as 'relevant market'. Defining relevant market for goods where competition is being questioned, is a prerequisite to determining anticompetitive effect of mergers with respect to the Fair Trade Act. However, defining the relevant market is more than just a precondition in determining anticompetitive effect via mergers; it has a critical role in determining whether the merger restrict competition. Relevant markets refer to the scope of enterprisers which are co-competitors, and thus, broad definition of relevant market lowers the market share or market power of the company thereby alleviating the evaluation standard of anticompetitive effect via mergers. On the other hand, if relevant market is defined narrowly, the opposite effect results. This shows that in determining the illegality of mergers, reasonable and accurate definition of the relevant market is imperative. Therefore, in many merger review cases, the recipient assert the market in mergers defines broadly, which brings the issue of ddefinition of relevant markets an essential issue in merger review cases. This paper thus analyzes how relevant markets defines in Free Trade Commission's decisions related to review of mergers for future in-depth studies on relevant markets.

주파수 이용권 양도ㆍ임대의 법률관계 -사법(私法)상 법률관계를 중심으로-

손창완 ( Chang Wan Sohn ) 연세대학교 법학연구원 2011 法學硏究 Vol.21 No.1

Radio wave, which is an essential means to transmit sound, data, or images, is inexhaustible natural resource which can be produced by anybody equipped with certain facilities. But it also has physical property of creating jamming or interference if the radio waves of a same spectrum are used simultaneously at the same space. For this reason Korean Radio Wave Act provides for a system of allocation of radio wave spectrum to ensure better use of radio wave. However the efficiency of using radio spectrum, which is limited resource, may be hindered if the alloted spectrum is not fully used. In this circumstance Article 14 of Radio Wave Act allows transfer or lease of radio spectrum license to enhance efficiency of radio spectrum use and to allow more users to share the same spectrum. However the transfer or lease of radio spectrum license is not widely used in practice, thus analysis and practical research of legal issues and consequences surrounding radio spectrum transfer or lease are urgently needed. Transfer or lease of radio spectrum between private parties shall be governed entirely by private law, but traditionally legal issues surrounding radio spectrum use were discussed mostly from the perspective of public law, consequently civil law issues in legal relationship between transferor and transferee or between lessor and lessee were not seriously debated. Especially the concerns for the protection of lessee in the lease of radio spectrum should be noted, since the prospective user who want to share the unused portion of radio spectrum are highly likely to avoiding leasing for fear of unstable legal status. For the purpose stated above, this paper shall firstly review the regulations of radio spectrum use, and analyze the legal relationship and structure surrounding use of radio spectrum license, transfer or lease thereof, and finally examine protection of lessee in radio spectrum lease.

검사윤리에 관한 고찰 -관련 규정 및 사례를 중심으로-

손창완 ( Chang Wan Sohn ) 연세법학회 2013 연세법학 Vol.21 No.-

Prosecutor, as the representative of public interest, is a governmental organ that possesses extensive authority, such as the authority to initiate, command and terminate the investigation, to prosecute a case, and to command and supervise the execution of a trial. The Korean law upholds ``indictment monopolism`` which grants the prosecutor the sole authority to prosecute a case, as well as ``indictment expediency`` which leaves much at the discretion of the prosecutor. Thus, the prosecutor bears a special responsibility and mission that correspond to the vast range of authority. The prosecutor must safeguard the rights of each individual by establishing the order of 「Rule of Law」 and subsequently contribute to building a safe and stabilized society in which justice is pursued and the principles of democracy are respected. Prosecutors are public officials affiliated to the Ministry of Justice; their duties and authorities are subject to the 「State Public Officials Act」. However, prosecutors must acknowledge that they must abide by ethical standards stricter than those of any other public officials in order to meet the high level of responsibility enforced upon them. They must also conform to additional obligations as compared to other public officials, given the special tasks they perform. The Ministry of Justice has enacted the 「Code of Ethics for Prosecutors」, and the 「Criminal Procedure Law」 as well as the 「Criminal Law」 are already in effect, to appropriately respond to the aforementioned needs. However, the prosecution has suffered from a number of disgraceful events recently: a prosecutor has had sexual intercourse with the suspect in his office; a prosecutor was placed under arrest for being bribed of 100 million KRW; a prosecutor was dismissed for handing a case over to the law firm owned by his brother-in-law. Such events have made the general public question the credibility of the prosecution. Some have pointed out the uncontrollably-large prosecution body and the absence of ethics as the reason for such problem. Indeed the problem is partially due to the structural matters, but for a larger part, it seems like the absence of ethics for prosecutors is what counts more. Despite the significance of this problem and the influence it has on the people, hardly anything is being studied or researched. Hence this dissertation would lay out the foundation of ``ethics for prosecutors`` by analyzing the current rules and clarifying the ethical standards that prosecutors must comply with under any circumstance.