資本市場法上 場外派生商品 淸算制度의 法的 爭點 = Legal Issues relating to CCP Clearing System of OTC Derivatives on Financial Investment Services and Capital Markets Act

다국어 초록 (Multilingual Abstract)

Over the past years, the growth of derivatives markets led to the debates regarding the need for regulatory reforms around the world. Moreover, it is said that the downfall of the prominent financial companies, such as Lehman Brothers, AIG, during the financial crisis has been widely caused by these firms' active involvement in derivatives trading. In general terms, derivatives represent a contract, the value of which is based on the value of some other assets, such as stock or interest rate. The stock price or interest rate is determined at a particular point in the future, and it establishes the payoffs to the parties to derivatives product. Derivatives, on one hand, can serve as a safety mechanism against potential losses from changes in financial markets. On the other hand, derivatives have been said to trigger serious systemic problems. Due to the lack of a central regulatory system, a default of a major party on derivatives contract could lead to cascading losses at a big banks and brokerage firms. As a response to the negative effect of derivatives, the United States of America promulgated the Dodd-Frank Act. The Dodd-Frank Act provides for mandatory central clearing of certain derivatives trades. In EU, the European Market Infrastructure Regulation(‘EMIR’) intends to impose obligations similar to those of the Dodd-Frank Act. In Korea, the Financial Investment Services and Capital Markets Act('FISCMA') introduced regulatory reforms like US and EU in recent revision. The FISCMA contains two new provisions relating to OTC derivatives: (1) certain derivatives contracts concluded by certain qualified parties are eligible for CCP central clearing services by clearinghouses(Sec.
9(25)), mandatory or voluntary, (2) certain derivatives contracts by certain qualified parties should be cleared through CCP clearing services(Sec 166-3).
This paper intends to analyze these provisions in respect of efficient operation and viability of CCP clearinghouses.

참고문헌 (Reference)

1 김이수, "證券去來制度上 集中當事者의 私法的 基礎에 관한 考察" 한국비교사법학회 13 (13): 429-459, 2006

2 Che Sidanius, "Thoughts on determining central clearing eligibility of OTC derivatives" Bank of England 2012

3 Y. Yadav, "The Problematic Case of Clearinghouses in Complex Markets" 101 : 387-, 2013

4 Willey, D. Barwise, "The European Market Infrastructure Regulation: European Union regulation of OTC derivatives, central counterparties and trade repositories"

5 C. Pirrong, "The Economics of Central Clearing: Theory and Practice" ISDA 2011

6 P. L. McBride, "The Dodd-Frank Act and OTC Derivatives: The Impact of Mandatory Central Clearing on the Global OTC Derivatives Market" 44 : 1077-, 2010

7 Committee on Payment and Settlement Systems, "Technical Committee of the International Organization of Securities Commissions" Bank for International Settlements, Recommendations for Central Counterparties 2004

8 Seema G. Sharma, "Over-the-counter Derivatives: A New Era of Financial Regulation" 17 : 279-, 2011

9 S. J. Griffith, "Governing Systemic Risk: Towards a Governance Structure for Derivatives Clearinghouses" 61 : 1153-, 2012

10 A. M. Chisholm, "Derivatives Demystified" John Wiley & Sons 2004

11 J. L. Allen, "Derivatives Clearinghouses and Syetemic Risk: A Bankruptcy and Dodd-Frank Analysis" 64 : 1079-, 2012

12 N. M. Feder, "Deconstructing Over-the-counter Derivatives" 2002 : 677-, 2002

13 J. C. Kress, "Credit Default Swaps, Clearinghouses, and Systemic Risk: Why Centralized Counterparties Must Have Access to Central Bank Liquidity" 48 : 49-, 2011

14 Daniel Heller, "Collateral requirements for mandatory central clearing of over-the-counter derivatives" 2012