사모 유동화거래시 사모주선인의 법적 지위와 책임에 관한 연구―CERCG ABCP 사건에서 실사의무 및 선관의무를 중심으로―

Abstract

This paper analyzes many important issues in the CERCG ABCP case for the first time in Korea which have not been dealt by precedent researches and cases. After looking at direct or indirect clauses regarding a lead underwriter under the Capital Market and Financial Services Act (hereinafter the Act), its Enforcement Decree, Rules and Regulations in detail, this paper tries to define the legal concept of a lead underwriter since the Act does not provide the concept precisely. This clarification is very significant since the concept also applies to ABS transactions equally under the Act on Asset Backed Securities, and thus including both underwriters and arrangers in public offerings but not including either underwrites or arrangers in private placements. Then, this paper studies the concept and scope of a due diligence comparatively and considers when brokers-dealers (arrangers-underwriters) are burdened by the duty of a due diligence in the course of ABS transactions. Registered ABS transactions and non-registered ABS transactions may be divided apparently. In former cases, the current system imposes the duty of a due diligence on both underwriters in public offerings and arrangers in private placements. In latter cases, the current statute levies the duty on underwriters in public offerings only rather than arrangers in non-public offerings. Even though the duty of a due diligence is not applicable to private placement arrangers in unregistered ABS transactions, the duty of care may be applicable. For this reason, the duty of care standards in same or similar business areas and in same or similar positions are deeply analyzed, which focuses on the role and duty of arranger banks in syndicated loans sequently. The private placement of ABCPs are similar to the reverse type of syndicated loans. In addition, both transactions are involved in professional institutional investors who stand competently with private placement arrangers and thus defending themselves against gaps of material and non-public informations. Since a private placement arranger in ABCP transactions is close to an arranging bank in syndicated loans, the duty of care by the former may be originated from the duty of care by the latter. Of course, intentional misrepresentations or misrepresentations with gross negligence can be attached to the private placement arranger and therefore being subject to serious torts claims. However, it should be noteworthy that the duty of care in this context, that is the duty to inform correct credit ratings of ABCPs offered by professional credit agencies is differentiated from the duty to explain by broker-dealers under the Capital Market and Financial Services Act.