증권예탁증권(KDR)의 법적 재구성

Abstract

The legal framework of Korean Depositary Receipts(the “KDR”) should be established reasonably and clearly in accordance with global standards. Depositary Receipts(the “DRs”) are negotiable financial instruments issued by depositary institutions (the “Depositary”). DRs, which are traded in the foreign capital markets, entail the same proprietary rights and interests as the original shares. Therefore, it is crucial that DRs be issued according to the global practices or standards. Also, it is necessary for foreign companies to issue DRs more conveniently than common stocks. This is because they are the alternative instruments designed to avoid possible legal problems from offshore issuance of original shares. Besides, the DR investors should be allowed to exercise equal rights as the underlying shareholders’. The Financial Investment Services and Capital Market Act(the “FSCMA”) states that KDR is one type of securities issuable. However, KDR is based on a contract(the deposit agreement) between the issuer of underlying shares and the Depositary. As a result, KDR is relatively unstable in terms of legal conditions compared to common stocks. Nevertheless, the demands from foreign companies’ issuing KDR continue to increase. In my opinion, “Trust” would be the best solution for these problems. The Korean Trust Act, revised in 2011, allows issuing beneficiary certificates not only for money trust but for all kinds of trust property. This is aimed at enhancing the liquidity of beneficiary’s rights and interests. The new Trust Act can be applied to KDR’s issuance. Then, most of legal problems from KDR’s legal instability could be solved. KDR will be issued in the form of beneficiary certificates, and its issuance and distribution will be regulated by the Trust Act. Moreover, the Depositary will be more responsible for protecting KDR investors safely as a trustee under the Trust Act.