국제증권거래와 관련한 자본시장법의 역외적용 －외국 투자매매업자 및 외국 투자중개업자에 대한 진입규제문제를 중심으로－

Abstract

Financial Investment Services and Capital Markets Act of Korea (FSCMA) stipulates in Article 2 thereof that the FSCMA shall apply to activities conducted even outside Korea if the effect of such activities are extended to Korea. In light of that provision, the entry regulation under the FSCMA should apply to a non-resident financial investment company (foreign broker/dealer) who is a party to the securities transaction between a resident and a non-resident (Cross-Border Securities Transaction). However, Article 7(4)(5), 7(4)(5-2) and 7(4)(6) of the presidential decree under the FSCMA (Safe Harbor Provisions) are exempting such foreign broker/dealers from the application of entry regulation if certain conditions are met. There are three approaches in the world with respect to the application of entry regulation to the Cross-Border Securities Transactions: National Treatment, Recognition and Passporting. The FSCMA’s approach falls within the National Treatment. The laws on the Cross-Border Securities Transaction in US, United Kingdom, Japan, Singapore, Hong Kong and Australia are largely based on the National Treatment and exempting or significantly mitigating the application of entry regulation where the Cross-Border Securities Transactions are entered into with only domestic professional investors or through the domestic licensed brokers. In addition, it is common that each of those countries does not apply its entry regulation to the Cross Border Securities Transactions for which no solicitation activities were made inside its own territory. The FSCMA largely takes same approaches with the foreign countries’ laws. It is difficult to interpret the Safe Harbor Provisions under the FSCMA since they are drafted in too simple languages. Therefore, in December 2015, the Financial Services Commission of Korea announced the guideline on the interpretation of Article 7(4)(6) of presidential decree under the FSCMA, a key provision among the Safe Harbor Provisions. This article attempts to interpret all Safe Harbor Provisions taking such guideline into the account and concludes that the Safe Harbor Provisions under the FSCMA are more conservative than foreign legislations in the sense that (i) only the Cross-Border Securities Transactions with very narrowly defined professional investors may enjoy the benefit of exemption and (ii) there are special regulations with respect to foreign underwriters and foreign issuers of derivatives-linked securities. The regulators should apply such entry regulations under the FSCMA in a prudent manner since those entry regulations are actually a trade barrier with respect to the sale of foreign securities.