증권의 해외발행에 관한 규제

Abstract

Regulation on off-shore offering of securities Yang, Gi-Jin Current Securities Exchange Act itself does not provide any clear guidance to whether it applies to offshore offering of securities. Therefore, there were interpretational disputes about whether one is subject to duty of registration statement when one offers securities abroad. Current Regulation on Securities Issuance and Disclosure (hereinafter, 'Regulation SID') revised in 2006 expresses clearly that securities may be transferable(unrestricted) in some cases even though they are issued outside Korean territory. However, current Regulation SID has still problems. First, due to strict Regulation SID, if even one resident acquires, the issuer becomes subject to duty of registration statements regardless of whether he wanted it or not. Therefore, instead of forcing strict non-resident requirement, we should consider carefully introducing a target requirement like Reg. S. Only when offers are targeted to the Korea both directly and indirectly, the issuer will be imposed upon duty of submitting registration statement. Furthermore, we need to make resale prevention period under Decree and Regulation SID more appropriate. Instead of imposing indiscriminate one year flow-back prevention, we need to consider the types and denomination of securities, issuer's condition of being listed and so on in regulating the issuer in Regulation SID. Finally in the view of investor protection, we should focus on the 'investment risk' rather than the securities itself. For example, the investment risk of an offshore securities can be flowed back into Korea even during the restriction period Regulation SID provides, which Regulation SID doesn't want. We have to give consideration to such a concern.