회사분할시 유로본드 투자자의 법적 지위

These days, most Eurobond investors do not hold physical bond certificates. The Eurobond issuer issues a global certificate representing the entire issue to a common depository of an international clearing system(such as Euroclear in Brussels, Clearstream in Luxembourg and the Depository Trust Corporation in the U.S.), which in turn hold their interests for participants who are members of the clearing system and who hold accounts with the clearing system. Investors buy and sell their holdings through book-entries made to their securities accounts with such participants directly or indirectly. Due to the globalization of capital markets, international investments have created enormous cross-border securities holdings, which are utilizing the foregoing indirect holding system. The case here represents the foregoing trend and may be summarized as follows: a Korean corporation has issued a typical Eurobond in a registered form and was later split into two new corporations and for itself become bankrupt. Prior to such corporate division, a few investors bought certain amount of the bonds from a U.S. broker through their accounts with the U.S. broker, which in turn had held its interests in the bonds through its account with Euroclear. In a capacity as bondholders, these investors have sued new corporations split from the issuer as well as the issuer. Disregarding the indirect holding by the investors, the lower court has decided that the investors are bondholders and therefore have rights to claim early redemption of the bond against the issuer. However, the higher court reversed the lower court's decision. It held that it should be determined by the trust deed relating to the bonds who are bondholders. Further it noted that Eurobond is not subject to any laws and regulations of any country. It concluded that according to the trust deed, the investors are not bondholders who can claim the redemption of the bonds against the issuer because they are not entered in the bondholders registry as bondholders. This Article analyses the case and criticizes the decisions in three aspects. First, the author insists that there are conflicts of laws issues with respect to the Eurobond. Accordingly, at the first stage the court should have decided the governing laws for every aspect of the bond issue and holdings by investors. The author sets a particular emphasis on a point that Eurobond is generally not subject to securities regulations of any specific jurisdiction, but is subject to substantive laws such as corporation, contract, property and torts of relevant countries which shall be determined by conflict of laws. The author points out difficulties in deciding laws governing indirect securities holdings, given the lack of relevant provision in the International Private Law of Korea and established precedents. Secondly, this Article examines the legal characteristics of the property rights of investors that have bond holdings through an indirect holding system. Depending upon the governing law, investors have either direct ownership on individual securities (or some form of pro rata ownership in the pool of securities) or are beneficially entitled to the securities only(in the latter case the first-tier intermediary, usually through its nominee, has a legal title to the securities). Because the bonds in question are issued in a registered form under English law, the legal characteristics of the property rights of investors in this case, however, have little significance in determining whether the investors have a valid claim against the issuer. Regardless of the characterization of the indirect holdings by investors under applicable laws, under English law (more specifically pursuant to the trust deed and terms and conditions of the bonds which shall be valid under the governing law, English law), investors have no direct relationship with the issuer because they are not entered in the bondholders registry as such. Thirdly, this Article discusses so called a "no-action clause" that are common in a typical English eurobond trust deed. Assuming that the trust deed for the bonds in question has such clause and it is not against public policy of Korea, the investors themselves are prevented from taking independent action against the issuer, even though they are registered bondholders. In conclusion, this Article appreciates the higher court's decision in that it focuses on the indirect securities holdings by the Eurobond investors and endeavors to figure out their legal status. However, this Article criticizes the decision because it does not address the issues on conflict of laws and no-action clause.