장외파생상품중앙청산소(OTC Derivatives CCP) 도입 관련 법적 쟁점 - 장외파생상품중앙청산소의 법적구조를 중심으로 -

Abstract

During Sub-prime Financial crisis, bankruptcy of Investment Banks or Insurance Companies, which invested sub-prime loans and RMBS excessively or provided credit derivatives,including CDS, in the process of securitization, gave rise to the worldwide systemic risk. On the analysis of the cause of Sub-prime Financial Crisis, it was pointed out that there was no function of collecting volumes of OTC derivatives transactions and no way of preventing transfer of systemic risk to the other financial institutions. Global efforts to solve these problems have been going through worldwide after G-20’s Pittsburgh Summit in september 2009. In line with these international movements, Financial Services Commission(hereinafter “FSC”) announced amendments of 「Financial Investment Services and Capital Markets Act」(hereinafter “FSCMA”) and Korea Exchange(hereinafter “KRX”) also announced the plan for providing OTC derivatives Central Counterparty(hereinafter “OTC derivatives CCP”). In this article the legal structure of OTC derivatives CCP will be discussed. The legal structure of OTC derivatives CCP should be decided in the manner of harmonizing with exiting Korean Laws, especially Korean Civil Law, Commercial law and 「Debtor Rehabilitation and Bankruptcy Act 」 (hereinafter “DRBA”). In my opinion, it’s better to adopt 「assumption of contracts (Gye-Yak-In-Su)」or 「novation」 instead of 「assumption of obligations(Chae-Mu-In-Su)」, which KRX announced to adopt in its plan for OTC derivatives CCP like CCP for exchange-trade securities and exchange-traded derivatives. It also better to adopt legal structure of 「commission agent(Wi-Tak-Mae-Mae)」 as the OTC derivatives clearing for Non-clearing members’ OTC trading. Finally, Article 120 of DRBA needs to be revised to cover the insolvency of OTC derivatives CCP as well as insolvency of its participants.