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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.
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