영구채 성격논쟁과 법적 과제

Abstract

Perpetual securities in this article are kinds of hybrid securities which are issued in the form of bond but do not have actual maturity. This has been issued with the name of “new capital instrument” (namely, hybrid capital instrument) by banks since 2003 in Korea according to the guideline of Basel Committee. Commercial companies, however, started to issue similar perpetual securities from 2013, and these issues prompted argument regarding the distinction between debt and equity. Korea Accounting Standards Board(KASB) classified those securities as equity, though they are still classified as debt in legal perspective. Considering this disharmony, it is necessary to review traditional dichotomous approach to legal concept of bond and stock or debt and equity. When defining the nature of securities, legal scholars traditionally suggested factors such as power to participate in management, maturity and obligation of repayment, the type of return on investment, and liquidation preference. Non of these factors, however, are conclusive to distinguish bond from stock because of diverse hybrid securities like perpetual securities. Reflecting this circumstance, this article argues that legislative policy needs to be changed in order to embrace the issuance of diverse hybrid securities. As to commercial law and securities law in Korea, legal scholars commonly agree to not allow the issuance of securities that are not clearly stipulated in law. This attitude is, however, difficult to be maintained under current financial market.