자본시장법상 파생결합증권에 대한 연구 －주식워런트증권을 중심으로 한 파생결합증권의 법적 성질과 관련 문제점 검토－

Under the Capital Market Act, Derivatives-Combined Securities are defined as instruments bearing the indication of a right under which the amount payable or recoverable shall be determined on the basis of a predetermined formula linked to fluctuations in the price of any underlying assets, an interest rate, an indicator, a unit, an index based upon any of the aforementioned, or any other similar factors. Unlike the Securities Transaction Act and its Enforcement Decree which were abolished upon the enactment of the Capital Market Act as of February 4, 2009, where definitions of Equity Linked Securities ("ELS"), Equity Linked Warrants ("ELW") and other derivatives linked securities ("DSL") were provided respectively, the Capital Market provides for the definition of "Derivatives-Combined Securities" only, which is deemed to include all the concepts of ELS, ELW, and DLS. As the Capital Market Act classifies "financial investment instruments" into securities and derivatives, this study reviews on criteria for such classification and legal characteristics of the Derivatives-Combined Securities, particularly focusing on ELW the economic substance of which is understood to be identical to the vanilla option. Under the　Captial Market Act, the Derivatives-Combined Securities is regarded as one stand alone type of securities separate from Debt Securities taking into the consideration risk to be arising from the derivatives embedded in the instruments and policy reasons for securities regulation. Given that Article 4 (7) of the Capital Market Act defining Derivatives-Combined Securities does not include a right to purchase the individual shares underlying the Derivatives-Combined Securities and that it is noted that in the ELW market, ELWs with cash settlement rights only are being traded, ELWs need to be interpreted as bearing the right for the cash settlement. As such, Derivatives Combined Securities need to be excluded from the securities subject to tender offer and disclosure on holding of shares, etc under Articles 133 and 147 respectively of Capital Market Act.