전자증권법의 상법상 쟁점에 관한 연구: 주식관련 법리를 중심으로

Abstract

Like many other countries the Korean Commercial Ccxle (or KCC) stipulates the importance of physical certificates in share transadions: share certificates show the entitlement of a shareholder and a transfer of shares should be perfeded by physical move of share certificates The dematerialization implies complete abolishment of paper certificates and introdudion of pure electronic transadion system. Unlike the traditional scheme, investors rnay not withdraw paper certificates and issuers rnay not publish physical certificates. For issuers, complete dematerialization shall reduce the costs associated with printing, safekeeping and issuing certificates; it enables issuers to easily identify shareholders and simplifies procedures for corporate adion such as convening shareholders’ meeting. In terms of investors, it will eliminate the risk of loss, forgery or theft of certificates. It will give the investors safer and more efficient way to trade shares. The investors may easily prove and exercise their rights. It benefits intermediaries as well. It will strearrùine and accelerate settlement for trades of shares. Also it will reduce the αst satisfying investor's demands, such as, for document showing his status as shareholder. This paper explores recent legislation for dernaterialization in Korea, with special focus upon eledronically-registered shares. The new Ad on the Eledronic Registration of Shares, Bonds, etc. (“Ad'’) has detailed provisions on the creation, transfer and exercise of rights under the eledronic registration system. According to the Ad, shares subjed to new scheme shall be recorded in books of accounts which are opened and rnaintained at intermediaries. An intermediary will carry two separate accounts with the Korea Securities Depository (“KSD"): institutional account, to which shares owned by the intermediary shall be credited: whereas customer account, to which shares it manages for its ultimate investors shall be credited. Eventual goal of materialization is to let all the securities be traded eledronically, but for the soft-landing of dematerialization the bill tried incremental change. A public1y-held corporation should use new scheme. Other than that, issuers may choose to deploy this scheme or a1ternatively to remain in paper-based systern. Once the issuer chose to use the new scheme, it will be prohibited from issuing certificates. Under the new bill, book entry is the only way of transferring securities, and no other requirement is necessary Under new scheme, intermediary and the KSD are only responsible for making book-entry and maintain securities accounts. They have no security interest in the securities they held. The investors have the right to the payment of principa1 and interest on debt securities and the right to receive dividends, vote etc on equity securities. The change from the pooled ownership to undivided ownership seems to be based upon the idea that the approach of undivided ownership is more simple and protedive of ultimate investors. Among various lega1 issues entailing new system, this paper analyzes the relationship between shareholder and company under the Act. Under the traditional jurisprudence of the KCC, each company should prepare and keep a list of shareholders, a list which shows the eligible shareholders of the company. According to KCC, the transfer of shares shall not be asserted against the company, unless the name and address of the transferee have been registered in the shareholders' list. Under the Ad, the role of shareholders' list sha11 be maintained: the eledronic ledgers (i.e. investor ledger + intermediary ledger) managed by the intermediaries and KSD under the new bill shall not replace the company"s shareholders’ list. One of the main argument of this paper, however, inc1ude the abolishment of traditional fundion by shareholders’ list: the eledronic ledgers may well take core role in recognizing the identification of shareholders.