주식 및 사채의 전자등록제 도입에 관한 상법개정안 고찰

Abstract

In October 2008, Korean government presented a bill to amend the Commercial Code for the implementation of a full-scale dematerialization of securities including stocks and bonds through an electronic registration system(the “Bill”). Once the Bill passes the National Assembly and the new system becomes effective, stocks and bonds will be owned or transferred through an electronic registration rather than by way of a holding or delivery of physical certificates. While there currently exist a few systems through which securities may be dematerialized or immobilized at a holder's option, the Bill will introduce a mandatory dematerialization system enforceable on all holders once an issuer opts-in. This Article analyses and evaluates the legislative frame and the operating mechanisms for the adoption of the new system in the hope of laying the groundwork for solving the intrinsic attribute problem on securities under the dematerialization system. Part II of this article examines the legislative frame of the Bill. First, the Bill does not have a general provision for the new system toward encompassing all kinds of securities, but have a set of provisions for stocks and then applies them to other kind of securities mutatis mutandis. Secondly, the Bill does not provides for every details for the implementation of the new system, but stipulates fundamental principles only and hands over the power to establish working rules to a separate statute to be legislated(so called "Securities Electronic Registration Act", the "SERA"). Part III goes through various issues involving the new system under the Bill. First, the Bill provides for a electronic book transfer system to be managed by a separate entity to be designated for such service pursuant to the SERA. SERA will specify details of the system including whether to have a direct-access frame or an indirect-access frame(if the latter will be the case, whether to have a two-tiered system or a multi-layered system). Secondly, an issuer will have a choice to adopt the new system with an authorization under its articles of incorporation and once it opts-in physical stock certificates may not be issued. Thirdly, a transfer of, or an establishment of pledge over, stocks will become effective only with an electronic registration. Record holder will be presumed to have the right as registered and a bona-fide purchaser will be protected. Fourth, the Bill does not deal with the stages on the exercise of the stockholders' rights and leaves it to the SERA. SERA will face, among others, an issue of how to treat the current stockholders registry system in connection with the electronic registry under the new system. Fifth, the Bill also provides for the adoption of the new system on the bonds and warrants for new stocks at the option of an issuer with an authorization under its articles of incorporation. In Part IV, I conclude that basically the Bill is in right direction in that it introduces the new system and sets forth only the fundamental layouts and leaves the administrative aspects and details for the implementation of the new system to the realm of the SERA, even though it requires some modifications and supplements on a few provisions. At this stage, it seems premature to make an attempt to inquire into the intrinsic attribute problem on securities under the dematerialization system and needs to wait til a bill for the SERA is proposed. Also the legislation of the SERA as well as the Bill is a requisite for the actual introduction of the new system and therefore I urge the passage of both the Bill and the SERA as soon as practicable.