커버드본드(Covered Bonds)의 담보구조

Abstract

Covered bonds are a class of secured corporate bond, generally issued by banks and secured by a cover pool of mortgage loans or public‐sector loans to which investors have a preferential claim in the event of default. Covered bonds differ from mortgage‐backed securities(“MBS”) in that the cover assets used to secure the obligations remain on the bank’s balance sheet. The essential feature of covered bonds is that an investor possesses not only a debt claim against the issuer, but also a security interest in a pool of cover assets that places it in a priority position of the issuer becomes insolvent. As a result of dual recourse against an issuer and a pool of cover assets, the rating on covered bonds is usually higher than that of their issuer. With respect to security mechanism, a typical secured bond simply creates a security interest that can be enforced over the issuer’s assets in priority to most other unsecured creditors upon the insolvency of the issuer. However, a covered bond is structured to meet the following two requirements: (i) it will not accelerate as a consequence of the insolvency of the issuer, in the sense that terms and conditions of the cover bond will remain as agreed initially; and (ii) the investors will maintain a preferential claim on cover assets compared with all other unsecured creditors of the issuer. The statutory covered bonds based on special legislation, such as German Pfandbriefe, satisfies the above‐mentioned two requirements concerning security mechanism by means of bankruptcy remoteness of the cover assets and the covered bonds that means the segregation of the cover pool and the pertaining covered bonds from the balance sheet of the issuer if the issuer becomes insolvent. By comparison, the structured covered bonds, such as U.K. Regulated Covered Bonds and the U.S. Residential Covered Bonds, in the absence of specific covered bond legislation, have instead applied conventional structured finance techniques to achieve the desired segregation of cover assets and bankruptcy remoteness in an insolvency situation. In the U.K., these structured covered bonds typically involve a bank issuing the covered bonds and transferring the assets in the cover pool to a special purpose vehicle (SPV), which then guarantees the issuer’s obligations to the covered bondholders and secures that guarantee with a charge over the asset pool. In the United States, the Uniform Commercial Code (UCC), which provides the legal basis to pledge assets via creation of a first priority perfected security interest, was also utilized. Recently, some Korean commercial banks are seeking to issue foreign currency denominated covered bonds secured by residential mortgage loans in order to diversify their funding sources. Notwithstanding that Korea has currently no statutory or regulatory provisions governing the issuance of covered bonds, the segregation and bankruptcy remoteness of cover assets for the issuance of covered bonds is able to be achieved by applying structured finance techniques under the Korean Asset Backed Securitization Act. The main obstacle to the issuance of covered bonds would be the inconvenience of creation and perfection of security interests over a large number of mortgage loans for a large number of investors under the present Korean legal system. Thus, development of special measures to ease and simplify the procedures for creation and perfection of security interests, including the introduction of the security trust quite common in obtaining security interests under English or New York law, will be much conducive to efficient issuance of covered bonds.