電子登錄 株式의 保有에 대한 檢討

The concept of stocks was a legal system to embody intangible properties on a certificate of their rights and to make it easy to use or exchange the rights. In other words, it was a physical certificate which not only made itself to have a unique legal character that was separate from it's rights but also made itself having it's own rules different from the rules of obligations. As the use of stocks increased, people began to deal with enormous amounts of stocks. Thus instead of signing the stock itself they started to use a special register and registered the owner for the exchange of stock or stocks. Through the register system, the original stock system which needed to be held and delivered physically became less important, and registering the owners name on the register had the importance for delivering stocks. That made to bring amendments of the original stock system. But the important issue was that the rights which had to be registered were not the obligatory rights which was in the prior stage of the stock itself, instead the stocks rights itself and that for these reasons it needed to be bound by the legal character of stocks. The academia solved this problem by making a legal theory that the stocks could be in bailment based on the concept of tenants in common. It focuses on several legal mechanisms; the one who have a possessory right of stock, is not the owner but the custodian, and as the method of conferring possessory right to owners, constructed tenants in common mechanism is used. So each owner only have his or her pro rata property interest on the stock. Not only the owner could receive the material rights but he or she could obtain the stock itself, and the owner was protected by the register so that the registered person had the same rights as a true stock holder. Moreover even when the stock holder didn't have his or her own stock certificate, he or she could easily circulate its rights. But the nowadays the electronic stage made the detour process quite difficult. Electronic stocks has in its word 'electronic', which means its material does not exist. Which means a stock without certificate can be brought up in the stock market. Whereas a certificate is the tool for embodying the rights in the stocks, electronic stocks erased the embodied substance for multi and mass transfers of stocks in order to make the market a highly utilized system. While in the existing legal characteristics rights as a shareholder and the rights for the stock certificate was clearly differenciated for its realistic and symbolized existence, in the characteristics of electronic stocks both rights are not easy to divide be cause of the non-existence of the physical certificate. So a difficult question has been brought about the legal theory asking whether the stock without certificate could be in bailment based on the concept of tenants in common. Moreover, when the electronic stocks is used for exchange, its legal process and status are another problem. This thesis presents the problems that are laid in front of us, and brings the matters to an appropriate solution.