외국환거래법상 제3자지급 규제의 연혁

The Foreign Exchange Control Act of Korea has a unique regulation which imposes reporting obligation on Korean residents when they remit/receive funds to/from a resident or nonresident who is not a counterparty of a transaction. Applying this regulation to actual cases is never easy because its literal application may lead to unacceptable results from a common sense perspective. First, determining 'a counterparty of a transaction' is not as easy as one may initially think. Next, it is very difficult to understand why settlement by or through agents should be regulated and why a settlement company legitimately engaging in business should be regulated. Above all, it is hard to understand why this regulation is necessary to control foreign exchange. I traced the legislation history of this regulation, and eventually found that this regulation might be a product of misunderstanding and human error. There is a big difference between Japan's 1979 foreign exchange control laws and the corresponding Korea's 1991 laws which were modelled on the 1979 Japanese laws. Under section 17 of the 1979 Japanese Foreign Exchange Control Act and the 1980 Ministerial Decree on Special Settlement Methods, Japanese residents had an obligation to report only when they remitted/received funds to/from other residents who were not contracting parties for the settlement of transactions between residents and nonresidents. However, under section 18 of the 1991 Korean Foreign Exchange Control Act, a Korean resident had an obligation to report not only when they remitted/received funds to/from residents but also when they remitted/received funds to/from nonresidents. As a result of this legislation, even cross-border remittance/receipt by or through legitimately authorized foreign exchange banks were included in restricted and discouraged behaviors. It seems that people who were involved in amending the Korean Foreign Exchange Control Act before 1991 might not have correctly understood the purpose of section 22 (DAESANG JIGEUB) of the then effective Act which prohibited HWANCHIGI, thus unintentionally enlarging regulated behaviors when they paraphrased the wording in section 22 of the old Act to section 18 of the new Act. As a result, Korea came to have a law regulating even cross-border remittance/receipt by or through foreign exchange banks. However, this legislation is far from the original purpose of regulating HWANCHIGI.