간접보유증권에 관한 담보제도의 개선방향 －UNIDROIT 제네바증권협약을 중심으로－

Through the establishment of "Convention on Substantive Rules regarding Intermediated Securities," UNIDROIT has organized the issues of indirect possession of securities based on substantive rules and set general principles and regulations that will apply to all Contracting States. This convention stipulates the Special Provisions in Relation to Collateral Transactions in Chapter V(Article 31-38), which is based on the European Financial Collateral Arrangements Directive. Article 31 sets the scope of application and definitions in Chapter V, Article 32 recognizes the title transfer collateral agreements. The issue of enforcement or realization of interests in securities is regulated in Article 33, Article 34 sets out the right to use collateral securities. The non-Convention law may contain a standard of commercial reasonableness where a right in respect of collateral securities is enforced or where the obligations between the parties are calculated. Such a standard is upheld under Article 35 in the event of enforcement under Article 33 and the calculation of obligations under Article 34. Article 36 and 37 set out top-up or substitution of collateral and certain non-applied insolvency provisions. Article 38 sets out a number of possible declarations that a Contracting State may make in respect of Chapter V. Where a Contracting State wishes to apply Chapter V, it may nonetheless limit its scope in respect of three specific issues (but only these three issues) mentioned in Article 38(2). First, Article 38(2)(a) makes it possible to exclude natural persons or persons in other specified categories. This provision should be read in connection with the definitions of "collateral taker" and "collateral provider"nine Article 31(3)(f)-(g), which place no limitations upon the market participants to which Chapter V applies. Secondly, Article 38(2)(b) makes it possible to exclude intermediated securities which are not permitted to be traded on an exchange or regulated market. This provision should be read together with the definition of "collateral securities: in Article 31(3)(e). Thirdly, Article 38(2)(c) permits a Contracting State to specify the categories of relevant obligations that fall within the scope of Chapter V, for instance, only obligations to deliver cash and/or securities. For the definition of "relevant obligations," see Article 31(3)(d). This paper is intended to compare the Special Provisions in Relation to Collateral Transactions in Chapter V (Article 31-38) to the Korean regulations on collateral transactions of indirectly possessed securities.