적격금융거래의 일괄정산에 관한 입법론

Abstract

The following clauses are to be added to the Draft Bill of "Act on Rehabilitraiton and Liquiation of Debtor" Artiocle 121(Closeout Netting of Qualified Financial Transactions) ①Where a rehabilitation proceeding is commenced ahainst a party to one of following transactions(hereinafter `qualified financial transactions`), which are baced on a master agreement that provides basic elements on certain financial transactions (hereinafter `master agreement` in this article), an agreement between parties and netting thereof. 1.Financial deribvative transactions, including forward, future, option and swp; 2.Spot, repurchase transactions securities lending transactions, 3.Transactions prescribed by the Supreme Court Rule, which is similar to transactions in Subparagraph 1 and 2 with regards to interest rate currency, equirt, credit, commodity, energy electricity, weather, freighrt, cycle band, environment, precious metal or their index; 4.Combined transactions of transactions prescribed by Subparagraph 1 through 3; 5.Security transactions or title transfer for security that accompanies transactions prescribed by Subparagraph 1 through 4. ② Evaluation amounts of claims and liabilties for netting should be calculated in a fair and objective manner when qualified financial transactions ater netted under Paragraph 1. ③ Article 44, Article 45, Article 46, Article 101( except in case where the debtor committed seriouslt unfair transactions with actual intent to harm creditors), Article 114 Paragraph 3 and Article 120 shall not applied to qualified financial transactions. Article 386 (Closeout Netting of Qualified Financial Transactions) ① Article 121 Paragraph 1 and Paragraph 2 are applied to cases where a party to a qualified financial transaction is adjudicated as bankrupt. A "commencement of rehabilitation proceeding" in Paragraph 1 of the same article is equal to an "adjudication of bankruptcy." ②Article 323, Article 335(except in cases where the debtor committed seriouslt unfair transactions with actual intent to harm creditors) and Article 337 shall not be ap[plied to Paragraph 1.