신용파생금융거래의 종류 및 법적 문제

Abstract

A credit derivative is a financial contract between two parties that provides for the transfer of credit risk. In a credit derivative transaction, one party (protection buyer) transfers the credit risk of a reference asset with payment of premium to another party (protection seller). Recently, the usage of credit derivatives has seen a drastic increase in international financial markets as they receive greater attention as a means to proactively manage credit risks inherent in financial transactions. Other than Credit Default Swaps (CDS), Total Return Swaps (TRS), Credit Default Options, Credit Linked Notes (CLN), and Synthetic Collateralized Debt Obligations (Synthetic CDO), which are widely accepted as typical credit derivates in the derivates transaction market, new credit derivatives products are being developed. So far, Korean regulators have recently acknowledged Credit-Linked Deposits (CLD), Basket Default Swaps, Portfolio Default Swaps, CDS Index, Credit Consonant Proportion Portfolio Insurance (Credit CPPI) and Consonant Proportion Debt Obligations (CPDO) as credit derivatives, but have not recognized Risk Participation, Loan Participation and Credit Charges as such. Further, one of the important issues is how the legal characteristics of new financial products such as credit derivatives differ for buying and selling, exchange, guaranty, assumption of liabilities and transfer of obligations, which are general types of legitimate acts stipulated under the Korean Civil Code. My analysis has found that as credit derivatives are newly created derivative products, they do not exactly fit into the existing concepts or transaction types stipulated under the Korean Civil Code. And the Capital Market and Financial Investment Services Act (the “FCA”), which will become effective in 2009, defines the concept of securities and derivatives transactions from a new perspective. In this regard, such definitions in the FCA require further clarification to gain the sympathy of the financial markets and its participants as they begin to view the FCA as forming the legal basis underpinning transactions in the future. Additionally, I hope that the capital markets supervisory authority and the foreign exchange supervisory authority, which hold different positions with respect to derivatives embedded securities, can agree to a unified position in the near future.