금융중개기관을 통해 간접보유하는 유가증권의 선의취득에 관한 연구
A Study on Good Faith Acquisition of Intermediated Securities Held by Financial Intermediary
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The extent to which the law should protect a transferee from pre-existing interests in the securities that it acquires is a complex and far reaching question. Certainly it is true that for every innocent purchaser that is able to invoke its legal protection against a claimant, there is an innocent claimant that may be harmed. In case where the transferee has acquired misappropriated securities in good faith, the law must determine which of the two innocent parties - defrauded original owner or the good faith acquirer - is entitled to the securities and which must satisfy itself with a personal claim. As you see, at the heart of matter lies a conflict between two fundamental principles of security of transfer and security of title. Security of title provides that a person should be deprived of his proprietary rights only in exceptional circumstances. Consequently, a person should not be able to convey title to securities belonging to another unless it possesses the authority or title to do so. Opposing this position is the principle of security of transfer. It protects the purchaser of securities rather than the vested rights of the original owner and provides that a transfer of assets in good faith should not be reversed. Securities may be less liquid than money, but their value lies in liquidity. In this regard, the protection of good faith acquirers of securities from the adverse claim of a prior entitlement holder not only promotes liquidity but also reflects the commercial expectations of owners of investment securities. Therefore, it would be desirable that the good faith acquirers of securities should prevail over the original owner in modern indirect holding system. Like this, the protection of a good faith acquirers of securities has developed into a central plank of settlement finality within the securities market. Moreover, in systems that employ omnibus account and multilateral netting settlement system, the claimant will face considerable practical difficulty in tracing the securities to their transferee. Thus, we must keep in mind that in sophisticated settlement markets, the transferee remained shielded by the practical difficulties involved in tracing misappropriated securities settled on a net basis. As a result of the difficulties in tracing pre-existing interests as well as for reasons of efficiency, a person that holds of the securities through an financial intermediary should not expect the purchaser of the securities in good faith to investigate title to them. That is to say, the purchaser should take good title unless it has notice or strong suspicion of a violation of another’s right to those securities.
Abstract
The extent to which the law should protect a transferee from pre-existing interests in the securities that it acquires is a complex and far reaching question. Certainly it is true that for every innocent purchaser that is able to invoke its legal protection against a claimant, there is an innocent claimant that may be harmed. In case where the transferee has acquired misappropriated securities in good faith, the law must determine which of the two innocent parties - defrauded original owner or the good faith acquirer - is entitled to the securities and which must satisfy itself with a personal claim. As you see, at the heart of matter lies a conflict between two fundamental principles of security of transfer and security of title. Security of title provides that a person should be deprived of his proprietary rights only in exceptional circumstances. Consequently, a person should not be able to convey title to securities belonging to another unless it possesses the authority or title to do so. Opposing this position is the principle of security of transfer. It protects the purchaser of securities rather than the vested rights of the original owner and provides that a transfer of assets in good faith should not be reversed. Securities may be less liquid than money, but their value lies in liquidity. In this regard, the protection of good faith acquirers of securities from the adverse claim of a prior entitlement holder not only promotes liquidity but also reflects the commercial expectations of owners of investment securities. Therefore, it would be desirable that the good faith acquirers of securities should prevail over the original owner in modern indirect holding system. Like this, the protection of a good faith acquirers of securities has developed into a central plank of settlement finality within the securities market. Moreover, in systems that employ omnibus account and multilateral netting settlement system, the claimant will face considerable practical difficulty in tracing the securities to their transferee. Thus, we must keep in mind that in sophisticated settlement markets, the transferee remained shielded by the practical difficulties involved in tracing misappropriated securities settled on a net basis. As a result of the difficulties in tracing pre-existing interests as well as for reasons of efficiency, a person that holds of the securities through an financial intermediary should not expect the purchaser of the securities in good faith to investigate title to them. That is to say, the purchaser should take good title unless it has notice or strong suspicion of a violation of another’s right to those securities.
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