파생상품과 도박규제

• 영문명: Derivatives and Gaming Regulations
• 발행기관: 한국사법학회(구 한국비교사법학회)
• 저자명: 김홍기(Hong-Ki Kim)
• 간행물 정보: 『비교사법』比較私法 제14권 제1호, 531~562쪽, 전체 32쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2007.03.30

영문 초록

  Derivatives help to manage risks, lower funding costs, enhance yield and diversity portfolios. Market participants clearly have legitimate interest in hedging against lost sales, and derivatives could provide opportunities for investments. For this reason, derivatives are treated as a legitimate investment scheme.
  Derivatives set the trend of the new era for the financial transaction. Global market for derivatives barely existed until 1970s, but today it appear that the term ‘derivatives’ gained widespread usage. As markets for derivatives have rapidly grown, relevant legal issues emerged from such growth. However, difficult legal issues that people have not anticipated have been raised because derivatives are naturally complex, opaque, difficult instruments to manage, and more risky than other traditional financial products.
  One of the most difficult legal issues has been defining the relationship with gambling law. In contrast to derivatives, gambling is not generally viewed as a productive activity or one that provides any benefit to society beyond its entertainment value. Gambling laws have traditionally had barriers to activating derivatives transaction; as those barriers are dwindling as legalization increases. Although investment opportunities on derivatives may be limited to sophisticated investors, but the sophistication and wealth barriers do not protect against speculating and gambling  regulation of derivatives. There should be some parallels between the gambling laws and the derivatives laws.
  However, the management of corporations and market participants used to concentrate on the business or finance aspects of derivatives, and does not carefully concern about the legal issues, especially in relation to gambling law, which accompany with derivatives transactions. Therefore it is recommendable to prepare a scheme to resolve doubt of market participants, use derivatives with safely and manage the risks which will rise with the growth of derivatives transactions. It it necessary to provide an obvious scheme to determine the standard of judgment between legitimate derivatives transaction and illegal derivatives transaction which falls within the categories of gambling laws.
  This article focus on the gambling aspects on derivatives transactions. The purpose of this article is to propose a scheme for legal analysis of derivatives, especially associated with the violation of gambling law. This article first discuss general theory and similarity relating to derivatives and gaming and wagering. Next, this article closely examine the standards of judgment, whether or not derivatives constitute or violates gambling laws. The final chapter of this article considers regulatory aspects of derivatives. All of these issues are considered in depth in separate chapter of this article.
  The financial derivatives markets continue to grow, as everyone expected that they would. Actually Asian-pacific derivatives markets incredibly grow. This article pursue the gambling aspect of derivatives into questions. This study is written in the hope of attempting to contribute those discussion.

목차

Ⅰ. 머리말
Ⅱ. 파생상품과 도박규제의 일반론
Ⅲ. 도박행위의 판단기준
Ⅳ. 외국의 입법례
Ⅴ. 맺음말
【참고문헌】
【Abstract】

키워드

파생상품 장외파생상품 선물 옵션 스왑 금융거래 도박 도박계약 도박죄 사행행위 Derivatives OTC Derivatives Futures Option Swap Financial Transaction Gaming Wagering Gambling Law