제한증권의 전매에 대한 연구
A Study on the Resale of the Restricted Securities
임재연
초록
This article deals with the regulation on the resale of the restricted securities under U.S. federal securities laws focusing on SEC Rule 144. The purpose of Securities Act of 1933(hereinafter "SA") is to prevent the public offering and sale of securities unless adequate information about them has been made available. SA §5 contains SA's basic prohibition against offers and sales without registration for any sale by any person of any security, unless it is specifically exempted from the registration provision by SA §3 or §4. SA §3 lists various categories of securities that are exempt from registration, and SA §4 describes a variety of transactions that qualify for an exemption for registration. Persons who acquired securities from issuer will sometimes have to worry about being classed as underwriters if they sell their unregistered shares. The principal situation in which a non-controlling shareholder needs to worry about being an underwriter, and would like to be able to use Rule 144, is where the person has previously bought stock from the issuer in a private transaction and now wishes to resell that stock. Especially where the investors has not held the stock very long, there os a chance the court will hold that he bought with an intention to resell rather than to hold for investment; if so, the resale is likely to be deemed part of the original distribution, the invester will therefore be an underwriter, and the resale will be an illegal sale of an unregistered security. In fact, the conditions which must be met before Rule 144 applies are actually easier in the non-controlling shareholder case. Restricted securities are defined in Rule 144 as including those acquired directly or indirectly from an issuer in a non-public offering, as well as securities subject to the resale restrictions imposed by the exemptions provided by Regulation D. Compliance with Rule 144 requires dissemination of sufficient current public information concerning the issuer. There are only two ways to satisfy the rule's information requirements. A company that is subject to the reporting requirements of the SEA satifies the rule, provided, of course, that all all reports are accurate and up to date. Foe companies that are not subject to SEA, the issuers must make similar information publicly available in order to qualify Rule 144. In additionn to public information requirement, the rule imposes a one-year holding period for resales of restricted securities. Article 12 of the Korean "Regulation on Securities Issuance and Disclosure" lists the securities which shall be deemed transferable, in accordance with Article 2-4 Paragraph (4) of the Enforcement Decree, to at least 50 persons within one year from the issuance date. The various provisions under U.S. federal securities laws regarding the restricted securities are likely to have a great influence on interpretation, by the Korean regulatory authorities and the courts, of the resale of securities acquired from an issuer in a non-public offering.