전자단기사채 활성화를 위한 법적과제

손영화(Son, Young-Hoa) 한양법학회 2013 漢陽法學 Vol.24 No.1

We should establish a legal system to companies that need funding to be able to raise money in the market. Electronic short-term bond has introduced to solve Commercial Paper(CP)’s various problems. CP has been conveniently utilized without the Board of Directors’s decision, the issuing company registration, the issuing securities report in it’s procedure issuing unlike stocks and bonds. CP has no restrictions on maturity after 2009. Therefore, after 2009, the CP has gradually replace long-term bond which does not seem to be desirable at all. In many cases, due to the investment without accurate information of CP, CP investors are harmed. Electronic short-term bond was introduced to replace the function of the CP. First of all, the arise, transfer, lapse of a right was made by electronic registration. This system will be overcome the limitations due to the real issue of CP. We are expected to disclosure the issue limit of Electronic short-term bond(program amount) at all times. This is a system that is designed to solve the limitations of the CP’s information notice. The electronic short-term bond act has put provisions in order to prevent the departure of a means of short-term funds. If the electronic short-term bond system is enforced well, we can be expected to be activated to short-term capital market in Korea. It is need to grant stronger incentive(deregulation) to the electronic short-term bond system.

기업어음(Commercial paper : CP)의 법적 문제

성희활(Seong Hye Hwal) 인하대학교 법학연구소 2010 法學硏究 Vol.13 No.3

이 논문은 2010년 국회에 제출된 「전자단기사채등의 발행 및 유통에 관한 법률안」의 배경이 된 기업어음에 관한 법적 논란과 관련하여 기업어음에 대한 비판적 주장들의 타당성을 검토하고 기업어음에 관한 법리를 정리하며, 단기사채의 대안을 모색하는 차원에서 작성되었다. 기업어음에 대하여 제기된 비판적 견해들의 요지는 대략 다음과 같다. 기업어음에 대하여 규제목적이 상충되는 어음법과 자본시장법이 중복적으로 적용되다 보니 문제가 있다. 더욱이 2009년 시행된 자본시장법이 기업어음에 대한 발행요건을 대폭 삭제하면서 단기자금조달수단인 기업어음이 장기 회사채 시장을 잠탈하는 바람직스럽지 못한 현상이 초래되고 있다. 기업어음은 자본시장법상 증권신고서 제출 의무가 없어서 투자자보호에 문제가 있다. 마지막으로 기업어음은 어음법에 따라 분할배서가 금지되어 유통성 확보에 문제가 있다. 따라서 대안으로 단기사채제도를 도입하는 것이 바람직하다는 것 등이다. 이 논문은 이러한 주장들 중 자본시장법에 관한 상당 부분이 자본시장법에 대한 오해나 이해의 부족에 기인한 것이라고 주장하였다. 그렇지만 어음법상 분할배서 금지로 인하여 기업어음의 유통에 문제를 초래한다는 주장은 타당하다고 판단하였다. 다만 분할배서의 금지로 인해 야기되는 문제점을 개선하기 위하여 단기사채 제도를 도입하는 것만이 유일한 대안인지에 대해서는 보다 면밀한 검토가 필요하다고 생각하며, 다른 대안으로 표지기업어음 제도와 같은 방안도 바람직한 면이 있다고 판단하였다. This article makes a study on the legal issues with regard to commercial paper(CP) in Korea. The government has proposed a new bill for the introduction of ‘electronic short-term bond’ this year which is supposed to replace the function of the current commercial paper. This legislative initiative has been backed up by some critical arguments against legal characteristics of the present commercial paper as follows: 1. The current CP has some problems caused by the duplicative regulation of the ‘Bills of Exchange and Promissory Notes Act’ and the ‘Capital Market and Financial Investment Act’. 2. The newly enacted ‘Capital Market and Financial Investment Act’ in 2009 has removed many regulatory requirements for issuance of CP. After that short-term CP has gradually replaced long-term bond which does not seem to be desirable at all. 3. Investor protection is not enough since commercial paper is exempted from the requirement of registration statement. 4. The current commercial paper cannot secure enough circulation due to the prohibition of splitting endorsement by the ‘Bills of Exchange and Promissory Notes Act’. My study shows that some critical arguments regarding the ‘Capital Market and Financial Investment Act’ in the matter of CP have no plausible legal grounds. This article, however, agrees that the prohibition of splitting endorsement causes a problem with circulation among various investors. Even if it were so, the introduction of ‘electronic short-term bond’ may not be the only solution. Cover note based on commercial paper, for example, may be a desirable one of alternatives for the proposed ‘electronic short-term bond’.

전자단기사채제도의 법적 쟁점과 과제

박철영 한국상사법학회 2013 商事法硏究 Vol.32 No.3

In January 2013, electronic short-term bond(hereinafter “ESTB”) has been introduced in a type of corporate bonds registrated on electronic account book. ESTB has been invented to replace the function of commercial paper(CP) which has various problems, i.e. issuing physical note, lack of transparency, shortage of transferability generated by prohibition of splitting endorsement. Accordingly, ESTB has the same marketability as CP does, holding characteristics of unsecured debenture with a maturity less than one-year. In this ESTB system, existing CP's legal form should be converted from promissory note to bond, and all processes of issuing and circulation would be digitalized. The transformation is plausible because the nature of ESTB coincide with CP's economic substance. On the contrary, the digitalization remains to be reviewed or improved in legal and operational domains in that ESTB is the first electronic bond on Revised Commercial Code of 2011. The most important issue is a relationship between ESTB and CP. Though ESTB has been introduced to replace CP, the needs of issuing companies will keep going for a while in spite of several restrictions on it. In this case, we can’t achieve the goals to enhance the transparency and stability of money market and to activate the circulation of short-term bond. So, it is necessary to harmonize the regulation on ESTB and CP such as securities statement. In addition, it is considerable to unify the market and products in short-term bond market by abolishing CP on the Capital Market Act. As I see it, we made sure of CP’s problems sufficiently prior to this, and it's great alternatives has been supplied to companies and investors.

전자등록 단기사채의 법적 성질과 유통성

이성웅 한국경영법률학회 2011 經營法律 Vol.21 No.2

According the Bill of Electronic Short-term Debenture, debenture will be issued and circulated not to the certification but with electronic registration. This debenture system means the first step for uncertifi- cation of security and electronizing of the financial investments. In order to secure negotiation of electronic short-term debenture, at first, we can approach by a rule of negotiable instrument. However the key point of negotiable instrument rule makes intangible right incarnating to certification of security and helps the certification to apply the rule of movable property. The essence of debenture is a credit and because the issuance and negotiation of a credit depend on electronic registration system, it is difficult ways to apply the rule of negotiable instrument from incarnation theory. Therefore we have to try to secure negotiability of debenture from the nature of credit. Japan has intend to secure transfer and negotiability of credit through the reform of public notice on credit. By new Act of Electronic Recording Debt of Japan especially, it is third right different from nominative credit and note certification and can be used as the total right with the merits of clarity of credit and negotiability of note. Japan Act suggests our law to secure negotiability of debenture by reinforcement of credit transfer. Therefore as the basic theory on the negotiability of the electronic registration debenture, instead of applying bona fide of real right rule, it is better ways to accept and develop the public notice theory which can be apply to every right of a real or a credit and be the foundation on the reinforcement of transfer effect by recording system.

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.

경제환경의 변화와 기업금융법제의 발전

정찬형 한국상사법학회 2015 商事法硏究 Vol.34 No.1

Ⅰ. Korean Commercial Code(Corporation Law)(Revision : Act No.10600, Declared April 14, 2011) (1) 2011 Korean Revised Commercial Code(hereinafter referred to as “KRCC”) diversified the classes of shares to provide convenience to companies in financing. Previous Korean Commercial Code(hereinafter referred to as “previous KCC”) provided non-voting shares, but only the class of shares having preferential rights as to the dividend of profits was provided to be non-voting shares(previous KCC §370(1)). 2011 Korean Revised Commercial Code deleted this limitation for non-voting shares(KRCC §344-3(1)). Moreover, 2011 Korean Revised Commercial Code provides the class of limited voting shares which is excluded from voting on certain agenda(KRCC §344-3(1)). Previous Korean Commercial Code provided redeemable shares only among shares having preferential right as to the dividend of profits, and the right of redeeming belongs to only the company(previous KCC §345). 2011 Korean Revised Commercial Code deleted this limitation(KRCC §345(1),(5)), and provides that the right of redeeming may belong to even shareholders as well as the company(KRCC §345(3)). Previous Korean Commercial Code provided that only shareholders with convertible shares may demand their shares to be converted into shares of another class(previous KCC §346(1)). However, 2011 Korean Revised Commercial Code provides that not only shareholders with convertible shares but also the company may demand for conversion(KRCC §346(2)). (2) 2011 Korean Revised Commercial Code introduced no-par value stock system. Namely, 2011 Korean Revised Commercial Code states that a company may issue no-par value shares provided when this company specified it in the articles of incorporation, in case a company issues no-par value share, the company shall not issue stock with par value(KRCC §329(1)). Companies may transfer their no-par value stocks into par value stocks or their par value stocks into no-par value stocks(KRCC §329(4),(5)), however the capital is not affected by the transfer(KRCC §451(3)). (3) 2011 Korean Revised Commercial Code introduced electronic registration system of stocks, bonds etc.(KRCC §§356-2, 420-4, 478(3), 516-7, 65(2)). Companies may register their shares to electronic stock registering institution(designated by authorities to deal with electronic stock registration) in accordance with the articles of incorporation(KRCC §356-2(1)). Since electronic registration substitutes the issuance of stock certificates, the stock should be issued prior to electronic registration. (4) Under the previous Korean Commercial Code, the total amount of bonds shall not exceed four times the amount of net assets of the company as shown by the latest balance sheet(previous KCC §470(1)), and a company shall not offer new bonds for subscription until the amount of bonds previously subscribed has been fully paid(previous KCC §471). Moreover, the previous Korean Commercial Code provided that the face amount of each bond shall not be less than ten thousand Korean Won(previous KCC § 472) and there was the restriction of equal rate’s amount on redemption in excess of par value(previous KCC §473). 2011 Korean Revised Commercial Code dropped trese articles to provide convenience to companies in financing. Under previous Korean Commercial Code, only convertible bonds(CB) and bonds with stock purchase warrants(BW) were provided. 2011 Korean Revised Commercial Code in addition to CB and BW provides participating bond, exchangeable bond, callable bond, derivative linked bond(KRCC §469(2),(3)). Ⅱ. Act of Korean Capital Market and Financial Investment Business The Act of Korean Capital Market and Financial Investment Business(hereinafter referred to as “Capital Market Act”) has special provisions for listed companies which are different from those of Korean Commercial Code. (1) Under Capital Market Act § 165-6(1)(3), the listed company which issues new share...

기업어음(CP)의 이슈와 개선방안에 관한 법적 연구

정승화 한국경영법률학회 2014 經營法律 Vol.24 No.4

Commercial paper plays an important role in a short-term money market as a mean of financing for a firm. However, unlike equity and bond, it does not have the obligation of disclosure as it is issued based on the Bills of Exchange and Promissory Notes Act which leads to some issues such as uncertainty of information, avoidance of public offering regulatory, opacity of market structure, and inefficiency of physical issuing. To extend the range of securitization of CP in the Capital Market Act with the purpose of reinforcing investor protection, regulations on issuance of CP have dramatically been relaxed. Yet it led to such adverse effects that enlarged regulatory arbitrage between CP and corporate bond. To improve opacity and inefficiency of CP, electronic short-term bond has been introduced in January 2013 which can replace CP with the same economic purpose. However, at this point after a year with this new system, regulatory arbitrage still exists between CP and electronic short-term bond that needs to be improved. CP and electronic short-term bond are substitute goods which have similar economic functions. For stable and efficient management of short-term money market and the improvement of opacity and inefficiency of CP, control on the demand of CP as well as vitalization of electronic short-term bond is necessary. In order to do so, first, regulatory arbitrage between CP and corporate bond needs to be prevented. Second, regulatory arbitrage between CP and electronic short-term bond should be reduced. Third, when issuing CP or other debenture, a legal basis upon the credit information law needs to be arranged to allow even non-deposit CP to make public and share the issuance information for accurate credit evaluation. Fourth, as for public enterprises established based on special act, electronic short-term bond should be obligatory both direct and indirect for transparency of public enterprise debt and revitalization of electronic short-term bond. Fifth, to handle liquidity risk due to shortened maturity of electronic short-term bond, introduction of back-up line of credit involving commercial bank can be considered to cope with the temporary lack of liquidity with the issuance of electronic short-term bond. In this case, incentives such as upgrading credit rating can be given like the United States.

글로벌 금융위기 이후 자산유동화거래에 대한 법적 규제의 현안과 개선방향

한민 한국상사법학회 2014 商事法硏究 Vol.32 No.4

The Law Concerning Asset-Backed Securitization (the “Securitization Law”),which was promulgated in 1998, has made significant contributions to thepromotion of asset-backed securities markets in the Republic of Korea. Sincethe occurrence of the global financial crisis, however, we have seeninternational trend of strengthening the regulation of financial industry,including securitization. Further, during the recent several years, thetransaction volume of securitization which is implemented outside theSecuritization Law (the “Non-Registered Securitization”) has been significantlyincreasing. In oder to better protect the investors’ interests and the stabilityof the financial system under the changed environments, it is time to makeimprovements to the overall regulatory scheme and the oversight andregulation with regard to securitization. This article compares and analayzesthe recent transactional trends and regulation of securitization in the U.S.,Japan and Korea and proposes that the following improvements be made:First, it is necessary to establish clear statutory guidelines for thedistinction between collective investments and securitization. The FinancialInvestment Services and Capital Markets Act (the “Capital Markets Act) hasestablished a comprehensive definition for the term “collective investment”,which belongs to one of the financial investment services regulated underthe Capital Markets Act and then, exempts the securitization transactionseffected under the Securitization Law from the regulation of collectiveinvestments. Due to the lack of statutory guidelines, it is not clear how theNon-Registered Securitization may be distinguished from the collectiveinvestment. Therefore, in order to minimize the legal uncertainties and thepossibility for regulatory arbitrage, it is necessary to establish clear statutoryor regulatory guidelines to distinguish “securitization” from “collectiveinvestments.” Secondly, it is desirable to strengthen the disclosure regulationsapplicable to securitization under the Capital Markets Act, particularly, withrespect to the Non-Registered Securitization. Finally, it is desirable tostrengthen the oversight and regulation of the Non-Registered Securitizationfor better protection of investors’ interests and for the sound investmentpractices. For this purpose, the Securitization Law needs to be improved. Itmay also be considered making certain provisions of the Securitization Lawmandatorily applicable to the Non-Registered Securitization. With respect tothe securitization transactions whose underlying assets are derivatives orderivatives-linked securities, it would be desirable to treat such transactionsbased on their economic substance and regulate similarly to the derivativesor derivatives-linked securities.

전환기의 어음·수표법학 -그 현상과 과제-

김문재 한국상사법학회 2011 商事法硏究 Vol.30 No.3

The Bills of Exchange and Promissory Notes Act and the Check Act of Korea had been e nacted 5 0 years a go. During t hat period, the Acts h ave hardly changed in contexts. While the past half-century, the bills and checks system has contributed to the development of the national economy and enterprise management. But the system exposed the side effects as a matter of operation, because of the distortion of economic structure in Korea. As the result, the Revised bills on the Bills and Promissory Notes Act in 1998 tried the abolition of the promissory notes system. And nowadays, we can see that the judicial judgments about the promissory notes and checks in the Korean Supreme Court Judgments have been decreased in quality as well as in number. Therefore, many parties also have the view that the importance of jurisprudence of bills and checks is decreasing continually, so-called in the age of Law School. In my opinion, the side effects like this are not the problem being derived from the bills and checks system in itself, but that of the economic structure in Korea. Therefore, I claim the institution of the bills and checks in Korea will have the large contribution to the economic society, and the jurisprudence of bills and checks will have the scholarly importance continually. In conclusion, this paper searches as following points for the lifting of the its existence value. Firstly, it investigates the status quo of the bills and checks system. Secondly, it analyzes the electronization situation of the bills and checks system. Thirdly, it presents the issues for the development of the jurisprudence of bills and checks.