투자자 증권에 대한 사전적 보호제도와 금융중개기관 도산 시의 사후적 권리관계

The protection of investor's securities contributes to financial stability and vice versa. It is a basic characteristic of the multi-tiered securities holding system that investors allow financial intermediary to administer their securities. In this regard, perhaps the most important principle to be observed from an investor protection perspective refers to the protection of investors against any abuse of the investor's securities by financial intermediaries and their creditors. In terms of legal aspects, investor protection requires both preliminary and post protection devices are necessary. Preliminary devices can be provided in several ways. The first rule of protecting investor's interests concerns the separation of the assets which a financial intermediary holds for its own account from the securities which this financial intermediary holds for its clients(investors). Second rule is that investors should be protected against their intermediary and its creditors by strict bookkeeping rules. Third rule is the prohibition of upper-tier attachment, which means that a creditor cannot attach positions held for its debtor at any level in the chain above its debtor's immediate financial intermediary. Forth rule is that financial intermediaries should be bound to effect only dispositions over securities account on the instructions of the relevant investor or a person that has been duly authorized by him. Final rule is that investors should always be entitled to retrieve the securities to which they are entitled from their financial intermediary. Next issue is about the shortage of securities and loss-sharing as a result of bankruptcy of financial intermediaries, competing rights over securities and priority. If a loss comes from the shortage of securities in financial intermediary, it should be shared among the account holders(investors) of the particular intermediary in proportion to the quantity and the amount of the securities irrespective of the classification of matching system or non-matching system. There must be clear principles that can apply to competing rights or conflicts of priorities. Principles for such cases are the principle a) that, with some predetermined exception, any credit records into an account resulting from a valid contract made with good faith shall be protected; b) that the investors must be protected from creditors to the financial intermediaries; c) that, in the case of securities shortage, investors of a same financial intermediary shall maintain the same proportional status over the securities of the same class; d) that, with a certain predetermined exceptions, the account holder who acquired the securities first shall have priority.