UNIDROIT의 ‘간접보유 유가증권 실체규범에 관한 협약’의 성립과 그 시사점

Abstract

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.