외화증권 예탁법제에 관한 개선방안

초록

It is a common practice in global capital markets for securities such as shares and bonds to be held through multiple intermediaries located in various countries. This holding pattern of securities has been producing new legal issues around the world that did not exist when securities were mainly held and traded within a single jurisdiction. Deciding how to apply laws and policy to the multi-tiered holding system of intermediated securities is a challenge for the regulators of each nation who are accustomed to their own traditional system. The Korean regulators keenly aware of both the need for increased certainty in transactions involving intermediated securities and the global nature of the marketplace for such securities. Based on the challenges to Korean securities laws, this Article reassesses two sets of legal issues surrounding the deposit system for foreign currency securities under the Financial Investment Services and Capital Markets Act (the “Capital Markets Act”). First, while each broker has to deposit domestic securities with the Korea Securities Depository (the “KSD”) under the Capital Markets Act, it seems to be not required to deposit foreign currency securities with the KSD. The Capital Markets Act thus should clarify this approach to provide that a broker should deposit foreign currency securities with a foreign depository appointed by the KSD. Second, there is no current provision concerning the effect of book-entry of foreign currency securities in securities accounts under the Capital Markets Act. The KSD rules instead provide that domestic investors are presumed to have a co-ownership interests in deposited foreign currency securities. Because substantive law governing this issue varies from jurisdiction to jurisdiction, however, it is not guaranteed that Korean investors would have a co-ownership interests in intermediated foreign currency securities deposited with various foreign custodians. Thus, it is desirable for the Capital Markets Act to make a new rule providing that a domestic investor would hold the same rights as a foreign investor would have in the country where the foreign currency securities are deposited.

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