외국환거래법상 대외채권 회수명령에 관한 소고 - 포괄적 회수명령의 적법성을 중심으로 -

Abstract

Foreign Exchange Transactions Act (the “FETA”) is notorious, especially to lawyers, in respects of having many carte blanche provisions, complex regulatory system and high risk of malpractice on the legal opinion thereof. Due to these characteristics, interest of lawyers in the FETA is very low, and whether the rule of law are well penetrated in the governmental practice of the FETA is the question. The ssue relating to the collection-and-recovery order can be one of these questions. Pursuant to Article 7 of the FETA, Minister of Strategy and Finance (the “MoSF”) may order residents to collect and recover the bonds against non-residents. By the way, Decree of the FETA stipulates directly that residents should collect and recover the bonds against non-residents. In this regard, the MoSF is taking the position that there is no need for specific orders individually to residents because comprehensive collection-and-recovery orders have already been made. However, the FETA has provisions to allow the MoSF to make such orders and thus it is necessary to order individually. So the obligation imposed by the Decree, without individual orders of MoSF, has no legal basis. In other words, the argument of the MoSF is not in compliance of the constitutional principle of the rule of law. The MoSF said sooner or later (who is?) going to reform the FETA system overall. Legislative at this time, Iexpect to get the Decree consistent with the rule of law.