證券對替決濟制度上 集中當事者의 物權法的 地位

Abstract

The Proprietary Position of Central Counterparty in Book Entry Settlement System Regarding Securities Held by Central Securities Depository I-Su KimAs Central Counterparty(CCP) service is introduced into securities clearing system, its legal position in the settlement system naturally comes under scrutiny. From legal perspectives, korean securities settlement scheme is based on deemed possession of the securities in collective custody by Central Securities Depository(CSD). Particularly, korean law provides that only restricted book entries grant deemed possession on the person for whom an account is opened and managed(so called “two-tier structure”). And no legal facilities other than book entries give rise to the effect of possessing securities held by CSD. If CCP is to be put into settlement scheme, an securities account for CCP would be opened on the book managed by CSD, and debit or credit to the securities account of CCP would be done following conclusion of trade. Does CCP acquire proprietary right on the securities credited to its securities account? Or it merely procure the possession of securities in collective holding by CSD for the account holder at CSD from whose account securities are debited? Following the latter analysis, it must be first solved whether the procurement of possesseion can be performed by any method other than book entry and the settlement structure exceeding two-tier is allowed in korean applicable law. This article attempts to clarify these problems.