제네바증권협약의 제정과 국내 증권법의 과제

Over the past fifty years, the practice of holding and disposition of investment securities has changed considerably. Departing from the traditional concept of custody or deposit on physical certificates, a system of holding through intermediaries has been developed by reasons of its efficiency, operational certainty and speed. However, the legal framework, which underlies the modern system of holding through intermediaries in many countries, still relies on traditional legal concept first developed for the traditional method of holding and disposition. Yet legal frameworks are not necessarily compatible with each other in domestic market, legal uncertainty is multiplied as securities holding and transferring across borders are increasing. In other words, the legal risk of securities holding and disposition over the area can not only trigger the systemic effects but also affect the efficiency of the market. By the effort of promoting internal soundness and cross-border system compatibility by providing the basic legal framework for the modern intermediated securities holding system, UNIDROIT adopted the Convention on Substantive Rules for Intermediated Securities in Geneva on October 2009. This Convention is regarded as the standard legal legislation of intermediated securities. And therefore, in Korean legal system, it would be easier to prepare new legislation by introducing electronic securities and amending the Capital Markets Act related to intermediated securities. More in particular, in new legal system, accommodation between multi-tiered holding architecture, nominee holding system and new collateral agreements, should be introduced. Finally, the principle of a priority ranking among competing interests with respect to securities and the protection of the innocent(good faith) acquirer of securities from adverse claims should be also provided.