외국법을 준거법으로 발행한 포괄사채권(Global Certificate)의 사채권자와 사채권의 행사주체 - 대법원 2010.1.28. 선고 2008다54847 판결 -

The issue of Global Certificates by local companies designed for foreign investors has greatly increased in recent years. In case that Global Certificates are issued under foreign proper law and kept in the custody system of International Central Securities Depositories(hereinafter' ICSDs'), the proper law is separated into two; one for primary market and the other for secondary market. In this case, the bond investors acquire the legal status prescribed in the law of the country in which ICSDs are incorporated. However, they fail to acquire the beneficial owner status stipulated by Capital Market Act of Korea. From this perspective, the supreme court's ruling has significant meaning in that it made it clear that, in case of foreign registered CBs which are issued under the proper law of England and in which the entity designated by trust deed becomes the bond holder of the register, ① the bondholder by the English Trust law is the bondholder stated in the bond register. ② the plaintiffs who keep their bonds in the custody of ICSDs through financial intermediaries can not become the bondholder who can exercise the rights granted to the bond. ③ the plaintiffs using ICSDs have different kind of rights from the bondholders who keep their bonds on their own. However, it is regretful that the supreme court's ruling applied the English law to the secondary market instead only to the relationship between the issuer and bondholder(primary market). Applying English law to the plaintiffs who keep their bonds in ICSD through B securities company when deciding whether they have the beneficiary rights under Trust law seems to come from misunderstanding of the legal principle of indirect securities ownership through financial intermediaries.