주식의 전자등록제도에 있어서 주주 보호 방안

Abstract

The system of electronic registered shares was newly introduced in the Korean Commercial Law in 2011(hereinafter referred to as the “KCL”). But the KCL does not provide provision of the electronic registration procedure, effect, etc. We need to establish a special Act(rule), so recently, member of Parliament Jong-kul Lee has proposed a “Act on Book-Entry of Securities, etc. in 2014”(hereinafter referred to as the “Lee Act”). I would like to compare Lee Act and “Act on book-Entry of Company bonds, shares, etc in Japan(hereinafter referred to as the JA).” Lee Act adopted two-tire, but the JA adopted multi-tire on the system of the Book-Entry transfer institution. Shareholder can register directly the institution or indirectly account management institution in Lee Act, but shareholder should only register indirectly account management institution in JA. However, new registration procedures for electronic registration, the enforcement of shareholder rights, such as the pledge of the Book-Entry Transfer Shares is similar. The ownership of the rights of the share in a company, which does not have a provision on the issuance of the share certificate in its articles of incorporation, shall be determined by the description or record in the book-entry transfer account registry. However, this shall not apply in cases where there has been a “Special Account” that said company has requested be opened on behalf of said shareholder or registered pledgee. The transfer of the Book-Entry Transfer Shares shall not take effect, unless the assignee has had the increase in the number of said Book-Entry Transfer Shares to be transferred described or recorded in the Ownership Column of the assignee's account. In other words, the investor shall be presumed to be the lawful owner of the rights to the Book-Entry Transfer Shares described or recorded in his/her own account. With regard to the Book-Entry Transfer Shares that have been described or recorded in the Special Account, the Participant may not apply for the book-entry transfer to the transferee account except to the account of said Participant or to the account of the issuer of said Book-Entry Transfer Shares. The Book-Entry Transfer Institution shall promptly notify the issuer of the shareholder's name and address, the Issue. it is said that notice of all shareholders. In this case, each of those matters shall be deemed to be described or recorded pursuant to the provisions of the record date of the KCL. The provisions of record date of the KCL shall not apply to the exercise of the minority shareholders' right, etc. in respect of the Book-Entry Transfer Shares. With respect to the Book-Entry Transfer Shares, the minority shareholders' right, etc. may be exercised after it is proposed the owner certificate or the notice individual shareholder. It needs to make a description or record in the Ownership Column or Pledge Column of the investor. Informally pledge can be described by Pledge column. The pledge of the Book-Entry Transfer Shares shall not take effect, unless the pledgee has had the increase in the number pertaining to the pledge described or recorded in the Pledge Column of the pledgee's account through application for the book-entry transfer. When the investor (including a Book-Entry Transfer Institution with an Institution Account) has had an increase in the number of the Book-Entry Transfer Shares of a particular Issue described or recorded in its account through application for the book-entry transfer (limited to the Institution's Own Account, if held by the Account Management Institution), the investor shall acquire the rights pertaining to said description or record of the increase in the number in the Book-Entry Transfer Shares of said Issue; provided, however that this shall not apply if said investor has acted in bad faith or with gross negligence. It proposes to introduce a compensation fund to protect the good faith purchaser like participants protection trust contract in JA.