영업담보제도의 생성과정에 관한 비교법적 검토

하헌주(Heon-Joo Ha) 한국비교사법학회 2006 比較私法 Vol.13 No.2

  Britain is a debtor may grant a floating charge over all the assets or inventories without identifying the objects. If a debtor company is obliged to obtain the consent of a secured creditor for the use and disposition of the collateral, it would hinder the company in securing funds and doing business. Floating charges were first recognised by the Court of Appeal in Chancery in Re Panama, New Zealand and Australian Royal Mail Co in 1870. Their juridical nature, however, was not finally worked out until the 1900’s and even today there are some crutial ambiguities. There was at first some doubt as to whether they were securities in the stricter sense before they crystallised, but it is now settled that a floating charge is a present equitable charge which is not specific but shifting until crystallisation, when it settles and becomes a fixed equitable charge.<BR>  In the contrary, in the France and Japan recognized a floating charge on some or all of company’s present and future property which leaves the company free to deal with the property subject to the charge in the ordinary course of business.<BR>  There is an amounting concern in Korea that the present charge system under which the debtor, the chagor, can not dispose of the charged assets in the ordinary of business without the consent of the creditor, the chargee, should be subject to reform.

미국 회사법의 탈규제화로 인한 효율성 논쟁에 관한 고찰

하헌주(Heon-Joo Ha) 한국기업법학회 2009 企業法硏究 Vol.23 No.3

Korean corporation law as primarily composed of mandatory rules that the shareholders themselves can not waive or modify. But law and economic, to which is called contracts as the dominant legal view, see American corporate law as primarily composed of waiver default rules, which the law provides as a model form contract in oder to reduce the transaction costs of contracting. This article joins the legal and economic disciplines. Most of it is an exercise in positive economics-that is, we take the world and its laws as given and try to understand why they are as they are. Some of it is openly normative-we take a few economic principles about what the law ought to be if it is to promote social welfare. This article concludes that the present system of mandatory rules in korean corporate law should be changed, but we never forget four limitation elements of changing system-the third party protection, power allocating, assurance against opportunistic article amendment, disclosure rules.

프랑스 영업질권제도의 도입에 관한 연구

하헌주(Heon-Joo Ha) 한국기업법학회 2009 企業法硏究 Vol.23 No.1

不正競爭의「槪念」에 관한 考察

하헌주(Heon-Joo Ha) 한국기업법학회 2004 企業法硏究 Vol.18 No.1

독일 경쟁법 (Wettbewerbsrecht)의 위상과 체계

하헌주 ( Heon Joo Ha ) 부산외국어대학교 비교법연구소 2005 比較法學 Vol.16 No.-

자동차손해배상보장법의 '운행'과 상법 제726조의 2의 '자동차의 소유, 사용 또는 관리'의 개념에 관한 연구

하헌주(Ha Heon-Joo) 한국법학회 2009 법학연구 Vol.35 No.-

자동차손해배상보장법을 비롯한 도로교통법, 도로법, 자동차관리법에서는 모두 '운행'이라는 용어를 쓰고 있지만, 그 의미가 서로 다르고, 자동차 본래의 효용인 장소적 이동을 위한 쓰임새에 대한 법적 개념도 각 법률이 추구하는 바에 따라 '운행', '운전', '소유, 사용 또는 관리' 등의 용어를 사용하여 용어의 복잡성으로 인한 혼란이 가중되고 있다. 게다가 1999년 자동차손해배상보장법이 개정되어 운행의 개념이 확장되었음에도, 대법원에서는 여전히 구 자배법의 '당해장치'라는 용어를 사용하여 혼란을 부채질하고 있다. 그래서 자동차손해배상보장법의 개정으로 운행의 범위가 확장된 근거인 제2조 제2호를 구 자동차손해배상보장법 제2조 제2호와 비교 검토하고, 이를 상법 제726조의 2와의 관련성을 고찰하여 '운행'과 '자동차의 소유, 사용 또는 관리'의 개념의 동질성에 대하여 고찰하였다. 그리고 대법원 판례의 동향을 살펴보고, 대법원 판례에서 쓰고 있는 '당해장치'를, 자동차손해배상보장법 개정 후에는 '자동차의 용법'으로 바뀌어야 하는 이유에 대해서도 언급하고자 한다. 자동차 사고를 야기하는 원인 행위인 '운행', '운전' 및 자동차의 소유, 사용 또는 관리'의 개념을 파악하는 것은 스스로 그 범위를 확정하기 위한 것이기도 하지만, 자동차손해배상보장법의 목적에서 규정하고 있는 바와 같이 궁극적으로는 피해자 보호에 초점을 맞추어야 하기 때문이다. An automobile insurance event is an accident arising out of the owns, uses or manages of the insured automobile. In the typical automobile liability policy issued in Korea, the insurer agrees to pay all sums which the insured shall become legally obligated to pay as damages because of bodily injury or destruction of property 'arising out of the ownership, maintenance or use of an insured vehicle'. The insurer of the automobile insurance contract shall be bound to indemnify for any loss caused by accidents which have occurred while the insured owns, uses or manages an automobile in Article 726-2 of Commercial Law. This is a study on the concept of 'operation' and 'owns, uses or manages' the same. Depending upon the interpretation the concept of 'operation' and 'owns, uses or manages' can be stretched in an insured or a suffer favor unlimited because the insured automobile is always under the owns, uses or manages of the insured during the period of insurance. The scope of the 'owns, uses or manage' is same that of 'operation' in Art. 2 2 of the Guarantee of Automobile Accident Compensation Act in Korea. And almost the same concept as the owns, uses or manages of automobile insurance policy. But the scope of those can not be extended unlimited. Arising out of is only important in interpreting the scope of the 'owns and manages' because the insured automobile is always under the owns or manages of the insured. And the 'uses' should not be extended beyond 'use of a vehicle as such'.

주식회사 감사제도의 문제점과 그 개선방안

하헌주(Ha Heon-Joo) 한국재산법학회 2008 재산법연구 Vol.25 No.2

  Corporate Governance is concerned with the way in which corporations are governed and in particular in Korea the relationship between the management of a company and its stockholders. Since the monetary crisis in 1997, Korea has made an effort to reform corporate governance of stock corporation and adopted the system of independent directors, commission in the board of directors, and audit committee. And a corporation can choose either an audit committee or an auditor.<BR>  This article focuses on the improvement of auditing system and the problems of this system in Korea. The audit system should consist of at least three members, and at least a majority of the members should be composed of directors who have no special relationship with the management or ruling stockholders. Incidentally, according to a certain article, it is necessary to maintain at least one inside director who is informed of business and affairs of corporation. This approach should be criticized because of the potentialities a conflict of views and the possibilities of infringement on the independence of audit committee. For that reason, the large publicly held corporation should be required to establish and maintain an audit committee comprised solely of directors independent of management or ruling stockholders.

營業擔保의 法理에 관한 考察

하헌주(Heon-Joo Ha) 한국비교사법학회 2004 比較私法 Vol.11 No.4

There is an amounting concern in Korea that the present charge system under which the debtor, can not dispose of the charged assets in the ordinary course of business without the consent of the creditor, the chargee, should be subject to reform. The general nature of the floating charge is some or all of the company's present and future property which leaves the company free to deal with the property subject to the charge in the ordinary course of business. Such a charge is, therefore, a particularly valuable means whereby a business concern can raise money without removing any of its property form the business. Also, it facilitates the granting of security over assets which in the normal course of a company's business are circulating. The charge remains floating and the company free to use the assets subject to the charge until the charge is converted into a fixed charge. This is referred to as the crystallisation of the charge. The normal crystallising event is the taking of steps to enforce the charge but there are others and these will be dealt with later. The floating charge holder will take the company's property subject to the rights of anyone claiming by title paramount. However, once the floating charge crystallises, this effects an assignment of the assets subject to the charge with the result that the assets are no longer those of the company.

일본 기업담보제도의 도입에 관한 연구

하헌주(Heon-Joo Ha) 한국비교사법학회 2009 比較私法 Vol.16 No.3

There is an amounting concern in Korea that the present charge system under which the debtor, can not dispose of the charged assets in the ordinary course of business without the consent of the creditor, the chargee, should be subject to reform. The general nature of the floating charge is all of the company's present and future property which leaves the company free to deal with the property subject to the charge in the ordinary course of business. Such a charge is, therefore, a particularly valuable means whereby a business concern can raise money without removing any of its property form the business. Also, it facilitates the granting of security over assets which in the normal course of a company's business are circulating. The charge remains floating and the company free to use the assets subject to the charge until the charge is converted into a fixed charge. The floating charge holder will take the compant's property subject to the rights of anyone claiming by title paramount. However, once the floating charge crystallises, this effects an assignment of the assets subject to the charge with the result that the assets are no longer those of the company. After discussing the nature of the specific problems to the company's property, I concluded that some provisions should be prescribed to protect company capital economic interests.

營業擔保制度의 法理와 導入方案

河憲註 한국기업법학회 2004 企業法硏究 Vol.16 No.-

Although it is advisable for a person entering into a loan or credit agreement with a company to secure the advancement of funds by means of a fixed charge, a company may have already created a fixed charge over the particular asset with which the subsequent creditor wishes to secure his loan. In such circumstances, priority issues may deem that it is not in the subsequent creditor's interests to secure his loan by means of a second fixed charge. Indeed, the merits of taking a second fixed charge will depend upon the value of the asset in relation to the amount of credit which the first fixed charge purported to secure. Where circumstances are such so as to render the creation of a subsequent fixed charge or mortgage ineffectual, a creditor may secure his loan by means of the floating charge. After discussing the nature of the specific problems to the company's property, I concluded that some provisions should be prescribed to protect company capital economic interests.