외국환의 법적(法的) 성격과 규율체계에 관한 일고찰

Given its highly opened economic structure, the importance of external trade and its accompanying foreign exchange transactions in Korea cannot be emphasized enough. Malfunctioning in foreign exchange market may cause the whole economic system to be stuck in doldrums and even trigger a severe financial crisis. That is why ‘the Foreign Exchange Transactions Act’, which constitutes the core of foreign exchange regulations in Korea, remains rather strict and is deemed to be strong in control, despite of the persistent deregulations since the 1997 Asian financial crisis. However, the recent financial environment in rapidly changing to such a degree that it seems hardly possible to anticipate its direction and speed, and regulatory authorities are required to respond instantly to the change more than ever before. Newly developed and complicated structured financial products are constantly being marketable. In particular, foreign exchange related products are traded with little subject to the regulation around the world. In this respect, the foreign exchange regulations in Korea need to secure more flexibility. This paper tried to find a clue to the solution by defining the legal concept of foreign exchange differently than conventional wisdom. That is, foreign exchange is working not merely as a means of international payment, but is functioning also as a financial investment instrument. Under such a perspective, regulatory implications are derived for the relationship between ‘the Foreign Exchange Transactions Act’ and the related laws, such as ‘the Financial Investment Services and Capital Markets Act.’ This work is only the beginning and further studies are needed to fill in the blank with respect to the regulatory design in detail. As a seminal work, nevertheless, this study will contribute to the relevant discussions and provide some implications for the government to improve the foreign exchange regulations hereafter.