전자증권의 담보설정과 법적 과제

맹수석(Maeng, Soo-Seok) 충남대학교 법학연구소 2014 法學硏究 Vol.25 No.1

예탁결제제도란 금융투자상품을 대량으로 보유하고 있는 증권회사나 기관투자자 등의 예탁자가 중앙예탁기관에 계좌를 개설하여 증권을 예탁하고, 증권의 양도나 질권설정 등의 권리 이전을 실물증권의 인도대신 계좌대체의 방법으로 하는 제도를 말한다. 그런데 종래와 같은 증권예탁결제제도의 경우 실무상 실물증권이 발행되어야 하기 때문에 발행비용의 증가, 위조·변조의 가능성, 도난·분실에 따른 권리상실 등의 문제가 있다. 이러한 문제를 해결하기 위해, 정부는 2011년 상법을 개정하여 주식, 사채 등 상법상 유가증권의 전자등록제도를 도입하였다. 이에 의해 자금조달비용의 감소, 발행절차의 간소화, 주주관리업무 부담의 감소, 실물증권의 분실·위조·변조 등의 위험 감소, 권리행사의 편의성 증대 등이 이루어짐으로써 사회 전체적인 효율성을 제고할 수 있게 되었다. 전자등록제도는 실물증권을 발행하지 않고 주주의 권리 등을 중앙등록기관의 전자등록부에 등록함으로써 증권의 발행이나 양도, 담보설정 등의 효력을 인정하는 제도이다. 따라서 권리의 양도나 담보설정등에 있어서 종전의 방식과 차이가 있을 수밖에 없다. 이 연구에서는 주식 등의 전자등록제도에 있어서 담보설정과 관련한 법적 문제, 특히 종전의 실물증권에 대한 담보처리절차와 달리 전자적 방법에 의해 이루어지는 담보처리절차의 특성과 개별적 과정 등에 대해 살펴보면서, 향후 관련 법제의 정비에 있어서 고려해야 할 점에 대해서도 검토하였다. 2014. 3. 21. 전자증권에 관한 법률안이 국회에 제출된 상태이다. 향후 입법과정에서는 주식 등의 전자적 방식에 의한 담보설정과 관련하여, 전자시스템 및 금융실무를 감안하여 권리보전방법, 질권과 양도담보의 구별 기준, 유가증권담보제공서의 처리 기준 등에 대해 구체적인 내용이 포함될 수 있도록 해야 할 것이다. The securities deposit and settlement(SDS) system enables a depositor, namely an institutional investor or a securities company having large quantities of investment instruments, to open an account at the central securities depository and transfers its rights, related to securities or pledge right, by means of book-keeping entry instead of the delivery of stock certificates. But in the case of the foregoing SDS system that stock certificates should be issued by due process, it is likely that the flotation cost will increase, that the certificates will be forged or falsified, and that the right will be forfeited by lost or stolen certificates. At this, the Korean government revised the commercial law in 2011 and introduced the electronic registration system regarding stocks and bonds that can be defined by the commercial law as securities and thereby made it possible to reduce the costs of funding, simplify the process of issuance, relieve the burden of stockholders-related administration, reduce the danger that stock certificates will be lost or forged or falsified, and facilitate more convenient exercise of rights. As a result, it was possible to raise social efficiency in general. The electronic securities system is to let stockholders list their rights on the electronic register of the central registration authority without issuing stock certificates and to legally recognize the issuance or transfer of securities and the setup of mortgage. Thus, it is different from the earlier system with respect to the transfer of rights or setup of mortgage. This study aimed to view mortgage-related legal problems with reference to the electronic registration system relevant to stocks and the like, especially with the process where mortgage is disposed of through electronic methods, not mortgage for stock certificates, as well as to review considerations in the realignment of related law systems. The electronic securities-related bill was submitted to the National Assembly in March 21, 2014. There is the need to endeavor to prescribe detailed regulations on the preservation of rights indexed to electronic system and financial practice, on distinguishment between the right of pledge and the transfer of mortgage, and on the processing of the security-backed mortgage offer.

유가증권의 전자화와 그 법적 과제에 관한 연구

허항진(Huh Hang-Jin) 한국법학회 2008 법학연구 Vol.30 No.-

전자증권제도는 증권예탁결제제도의 발전에 따라 실물증권의 필요성이 감소하고, 정보통신기술의 발달에 따른 금융시스템의 전자화 확산 등으로 인하여 생성된 제도이다. 그리고 이 제도는 오늘날 전 세계 97개국 중 67개국(부분적 시행국가 포함), OECD 30개국 중 25개국이 시행하는 보편화된 제도로 정착되었다.이에 최근 우리나라에서도 전자증권제도의 도입을 위한 움직임이 가시화되고 있다. 이와 같은 국내외적인 금융시장의 환경변화와 금융산업의 투명성 제고 및 효율성 제고라는 측면에서 볼 때 전자증권제도는 조속히 도입되어야 한다는 것에는 이견이 없다. 그러나 전자증권제도는 전자등록부에의 등록만으로 권리관계의 결정 및 권리의 이전 등을 처리하게 되므로 실물증권의 발행을 전제로 하는 기존의 법체계상 많은 법적 혼란을 초래할 수 있다. 따라서 전자증권제도를 도입함에 있어서는 이러한 법적 문제점을 우선 해결하여야 할 필요가 있다고 본다. The electronic securities system was created as physical securities certificates became obsolete due to the development of the securities deposit and settlement system, and the digitalization of financial systems expanded following the information technology development. The electronic securities system is now implemented(including partial implementation) in about 67 of the 97 countries around the world and 25 of the 30 OECD countries. Accordingly, there are visible movements to implement the electronic securities system in Korea. In view of changes to the domestic and international financial market environment, and enhancement of the financial industry transparency and efficiency, objections to introducing the electronic securities system as soon as possible is unlikely, However, since the electronic securities system will determine the rights relationships and process rights transfers exclusively by electronic registration, it could cause much legal confusion under the existing legal system which is based on the issuance of physical securities, and there also may be concern over the stability of the electronic securities system. In consideration of these issues, it is of vital importance to resolve this legal challenges first.

금융중개기관을 통해 유가증권을 간접보유하는 투자자의 법적 지위

허항진 한국상사법학회 2008 商事法硏究 Vol.27 No.1

Under the traditional system for direct holding of securities, individual securities were issued to investors who in turn had the right to trade those securities with other investors. In an modern indirect holding system on the other hand, financial intermediary such as a brokerage firm not only hold the securities on behalf of investors but also frequently own beneficial rights in those securities. In this wise, the indirect holding system is widely used in domestic and global trading of securities, and is decisively replacing direct holding because it both reduces the overall costs and complexities of record-keeping and lowers the risk of loss associated by physically transferring securities. Despite the changes in securities holding pattern from direct securities holding to indirect securities holding, conventional way of legal approach based on direct holding of securities still exists and tends to apply to the indirect holding system. Against this backdrop, a number of legal uncertainties emerged in such areas as the substantial laws. Among them, one of the main issue is what is the legal status of investors holding securities indirectly and their rights over them. This issue is related to the legal nature of investor rights over indirectly held securities, measures to protect investors, and the responsibilities of financial intermediaries towards investors. Most of all, an investor’s right over indirectly held securities should be classified as a property right rather than a simple personal or contractual claim against financial intermediaries. In the U.S., the investor’s legal status for indirectly held securities with financial intermediary is governed by Article 8 of the Uniform Commercial Code, which protects investors by conferring property rights with respect to indirectly held securities. A similar position arise under the general principle of English law. Under the English law, investors can enjoy proprietary interests in indirectly held securities by trust and co-ownership arrangements, equitable tenancies in common. In the same manner, investor’s rights on indirectly held securities are protected in the civil law jurisdictions by special legislation. Although investor’s right over indirectly held securities is viewed as a property right, when we consider today’s securities transaction and holding practice, it is not desirable to form a logic that allows an investor to legally trace to individual securities held with upper tier intermediary which does not have any relationship with an investor. Indirect holding system brings up an issue of what particular obligations a financial intermediary holds to an investor and what are the measures to rescue the investor in cases where the obligation is breached. Such an issue shall be basically determined by the legal provisions on the legal status and responsibilities of a financial intermediary. A majority of the issues, however, have to depend on the relations between investors and financial intermediaries, or any interpretation of the legal terms of contracts, which call for building a sound theoretical ground to set forth a clear standard for such interpretation. Under the traditional system for direct holding of securities, individual securities were issued to investors who in turn had the right to trade those securities with other investors. In an modern indirect holding system on the other hand, financial intermediary such as a brokerage firm not only hold the securities on behalf of investors but also frequently own beneficial rights in those securities. In this wise, the indirect holding system is widely used in domestic and global trading of securities, and is decisively replacing direct holding because it both reduces the overall costs and complexities of record-keeping and lowers the risk of loss associated by physically transferring securities. Despite the changes in securities holding pattern from direct securities holding to indirect securities holding, conventional way of legal approach based on direct holding of securities still exists and tends to apply to the indirect holding system. Against this backdrop, a number of legal uncertainties emerged in such areas as the substantial laws. Among them, one of the main issue is what is the legal status of investors holding securities indirectly and their rights over them. This issue is related to the legal nature of investor rights over indirectly held securities, measures to protect investors, and the responsibilities of financial intermediaries towards investors. Most of all, an investor’s right over indirectly held securities should be classified as a property right rather than a simple personal or contractual claim against financial intermediaries. In the U.S., the investor’s legal status for indirectly held securities with financial intermediary is governed by Article 8 of the Uniform Commercial Code, which protects investors by conferring property rights with respect to indirectly held securities. A similar position arise under the general principle of English law. Under the English law, investors can enjoy proprietary interests in indirectly held securities by trust and co-ownership arrangements, equitable tenancies in common. In the same manner, investor’s rights on indirectly held securities are protected in the civil law jurisdictions by special legislation. Although investor’s right over indirectly held securities is viewed as a property right, when we consider today’s securities transaction and holding practice, it is not desirable to form a logic that allows an investor to legally trace to individual securities held with upper tier intermediary which does not have any relationship with an investor. Indirect holding system brings up an issue of what particular obligations a financial intermediary holds to an investor and what are the measures to rescue the investor in cases where the obligation is breached. Such an issue shall be basically determined by the legal provisions on the legal status and responsibilities of a financial intermediary. A majority of the issues, however, have to depend on the relations between investors and financial intermediaries, or any interpretation of the legal terms of contracts, which call for building a sound theoretical ground to set forth a clear standard for such interpretation.

해외상장과 유가증권예탁결제제도

최경렬 한국금융법학회 2007 金融法硏究 Vol.4 No.1

More and more attention is being paid to foreign market listing as crossborder securities transactions are considerably increasing with globalization. Foreign market listing can be done in two forms: depositary receipts (DR) or share certificates. Corporations can issue and list DR overseas for the shares they issue in the domestic market or list their share certificates directly on overseas exchanges. In the meantime, the securities deposit and settlement system, which was introduced to facilitate securities transactions, also plays an important role in overseas listing. If a country’s securities deposit and settlement system is linked with that of another country through CSD (Central Securities Depository) linkage, share-listing on overseas exchanges is possible, even in the case where shares are issued in the domestic market and deposited with the domestic CSD. In this case, entitlement processing for foreign investors could be taken care of through CSD linkage. But, custody and corporate action services have been provided by global custodians, who started their services even before the establishment of CSDs. Therefore, it is true that this new approach of CSD linkage has many difficulties to overcome. If CSD linkage is not easy to accomplish, which is true in current situation, issuing and listing share certificates overseas could be an option, but not a desirable one. Issuing share certificates in a foreign country could cause a conflict between the legal system of the foreign country and that of the country where the issuer is resided, and arise many problems concerning corporate action. All of the problems could be solved with overseas DR listing. DR is foreign securities issued overseas as the receipts of the shares issued and deposited in the domestic market. Therefore, a possible conflict of the legal systems is rare, and corporate action can be processed without difficulties by taking advantage of the DR custodian network with the local custodian for shares. In addition, DR enables timely arbitrage, which is difficult in the case of overseas listing in the form of share certificates. Corporations, which co-list their shares on multiple exchanges, will have to make every effort to take necessary steps so that their overseas investors can conveniently exercise their rights, along with their effort to raise their fundamental value with sound financial structure and bright outlook. And DR could be used as one of the desirable means for them to reach the goal.

전자증권제도 도입시 국채의 합리적 발행등록방안

김용재(Yong-Jae Kim),조인호(In-Ho Cho) 한국기업법학회 2008 企業法硏究 Vol.22 No.3

On July 11th of 2007, the Korean government suggested a basic plan for the complete dematerialization system of all types of securities. The Ministry of Justice made a preliminary announcement that it would reform the Korea Commercial Act by introducing the securities materialization system, that is the electronic registration of stocks and corporate bonds. The necessity and adequacy of the securities materialization system have been deeply analyzed in a well-researched report on September of 2006 written by Booz/Allen/Hamilton Consulting Firm of which title is "the Master Plan for the adoption of the securities materialization." Then, the report was officially submitted to the Korean Securities Depository. Some minor issues should be solved in advance for the soft and successful landing of the securities dematerialization, including an issue that who get the power in the initial (or primary) registration of government bonds and bills between the Bank of Korea and the Korean Securities Depository. The conflict of interest problem between both institutions should be solved following to several rationales which have been well grounded in terms of neutrality and objectivity in the securities sectors. A turf war between both institutions based on institutional selfishness should be avoided. This paper reviews three alternative models currently available in the world. Model Ⅰ is that the central securities depository has either a primary registration power or a secondary registration power in the course of dematerialization process of government securities. Model Ⅱ is that the central securities depository has only the secondary registration power and the central bank has the initial registration power. Model Ⅲ is an absolutely opposite one to Model Ⅰ and the central bank has all the registration powers in the government securities. This paper concludes that Model Ⅰ should be a norm in the near future in terms of either an international perspective or a efficiency and scale economy aspect on a domestic level.

전자주권에 관한 연구

김용구(Yong-Ku Kim),고명규(Myung-Kyu Ko) 한국기업법학회 2007 企業法硏究 Vol.21 No.4

In my opinion, an Electronic Stock Certificate System must be an epoch-making one which cannot compare with the existing Stock Certificate System. However, This System can tarnish the original meaning when it has an immature of a prior condition. I think whether This System succeeds or not depends on a reasonable understanding about an Electronic Stock Certificate in the public- a stockholder, the investing public, a company and the Government. This Paper examined a theory of legislation in case of introduction of an Electronic Stock Certificate in Korea. it inquired into the purposes, forms, articles and what not of legislation, and namely examined the articles of legislation in case of introduction of an Electronic Stock Certificate system. Also, it looked into the clausal amendment of commercial law, a revision of the law about an Electronic Stock Certificate, the necessity of an unitary Special law. It inquired into a stability of electronic system and into a bona fide offering, a stockholder list, a company bond, a Registration service and procedure, an electronic register, and CSD which was the main clause of enactment of a law in case that an unitary special law was enacted that connected with an Electronic Stock Certificate.

주제별 논단 : 기타 ; 해외상장과 유가증권예탁결제제도

최경렬 ( K. R. Choi ) 한국금융법학회 2007 金融法硏究 Vol.4 No.1

More and more attention is being paid to foreign market listing as crossborder securities transactions are considerably increasing with globalization. Foreign market listing can be done in two forms: depositary receipts (DR) or share certificates. Corporations can issue and list DR overseas for the shares they issue in the domestic market or list their share certificates directly on overseas exchanges. In the meantime, the securities deposit and settlement system, which was introduced to facilitate securities transactions, also plays an important role in overseas listing. If a country`s securities deposit and settlement system is linked with that of another country through CSD (Central Securities Depository) linkage, share-listing on overseas exchanges is possible, even in the case where shares are issued in the domestic market and deposited with the domestic CSD. In this case, entitlement processing for foreign investors could be taken care of through CSD linkage. But, custody and corporate action services have been provided by global custodians, who started their services even before the establishment of CSDs. Therefore, it is true that this new approach of CSD linkage has many difficulties to overcome. If CSD linkage is not easy to accomplish, which is true in current situation, issuing and listing share certificates overseas could be an option, but not a desirable one. Issuing share certificates in a foreign country could cause a conflict between the legal system of the foreign country and that of the country where the issuer is resided, and arise many problems concerning corporate action. All of the problems could be solved with overseas DR listing. DR is foreign securities issued overseas as the receipts of the shares issued and deposited in the domestic market. Therefore, a possible conflict of the legal systems is rare, and corporate action can be processed without difficulties by taking advantage of the DR custodian network with the local custodian for shares. In addition, DR enables timely arbitrage, which is difficult in the case of overseas listing in the form of share certificates. Corporations, which co-list their shares on multiple exchanges, will have to make every effort to take necessary steps so that their overseas investors can conveniently exercise their rights, along with their effort to raise their fundamental value with sound financial structure and bright outlook. And DR could be used as one of the desirable means for them to reach the goal.

UNIDROIT의 ‘간접보유 유가증권 실체규범에 관한 협약’의 성립과 그 시사점

김병태 국제거래법학회 2012 國際去來法硏究 Vol.21 No.2

The UNIDROIT Convention on Substantive Rules for Intermediated Securities(the ‘Convention’), also known as the ‘Geneva Securities Convention,’ was adopted on October 9, 2009. So far (December 2012), it has been signed by only one (Bangladesh) of the 40 negotiating States. The main purpose of the Convention is to offer harmonized transnational rules for the purpose of reducing the legal risks associated with the holding of securities through intermediaries. The Convention consists of 7 chapters as follows: Chapter I: Definition, sphere of application, Chapter II: Rights of account holder, Chapter III: Transfer of intermediated securities, Chapter IV: Integrity of the intermediated holding system, Chapter V: Special provisions in relation to collateral transactions, Chapter VI: Transitional Provisions, and Chapter VII: Final Provisions. On the national level, Korea has adopted the new system for electronic stock and debenture by the amendment to the Commercial Law (amended on April 2011,effective on April 2012). Korea has also adopted another electronic short-term debenture system through the Electronic Short-term Debenture Act established on July 14, 2011, effective on January 14, 2013. Accordingly, under the recent amendment and legislation of relevant Acts, stock and debenture can or will be issued and circulated not to the certification but with electronic registration. Such electronic stock and debenture systems mean the first step for uncertification of security and electronizing of the financial investments. However, there are some conflicts between the Convention and Korea’s related provisions under several Acts. Among the related Acts, the Financial Investment Services and Capital Markets Act(‘FISCMA’) basically covers the matters of intermediated securities. With respect to effects of statement of account book, the Convention provides that Credit/Debit to a securities account is considered to acquire/dispose intermediated securities (Convention Article 9, 11, etc). However, Korea provides that statement to a securities account is considered to hold respective securities (FISCMA Article 311). With respect to protection to the innocent acquirer of securities, the Convention provides for the approval of innocent(good faith) acquisition by transfer of securities between accounts (Convention Article 18). However, Korea provides that innocent(good faith) acquisition by transfer of securities between accounts is not yet stipulated expressly. With respect to various ways of establishing a security right, the Convention provides that the way of transfer of securities between accounts or control agreement is also accepted (Convention Article 12). The control agreement is the one that pledgor grant ‘control’ (authority of management and disposition) of the account to secured party for the purpose of establishing a security right. However,Korea provides that the way of transfer of securities between accounts or control agreement is not accepted. For the present, a security right is established in the way of statement to be pledged in account books (FISCMA Article 311). It is noted, therefore, that the Convention is expected to be operated as Global Standard of clearing and depository legislation and commitment to the Convention implies for the law revisions on national level. In this regard, Korea should resolve any conflicts and problems on the national level between and among relevant laws regulating intermediated securities.