資本市場法上 場外派生商品 淸算制度의 法的 爭點

Over the past years, the growth of derivatives markets led to the debates regarding the need for regulatory reforms around the world. Moreover, it is said that the downfall of the prominent financial companies, such as Lehman Brothers, AIG, during the financial crisis has been widely caused by these firms' active involvement in derivatives trading. In general terms, derivatives represent a contract, the value of which is based on the value of some other assets, such as stock or interest rate. The stock price or interest rate is determined at a particular point in the future, and it establishes the payoffs to the parties to derivatives product. Derivatives, on one hand, can serve as a safety mechanism against potential losses from changes in financial markets. On the other hand, derivatives have been said to trigger serious systemic problems. Due to the lack of a central regulatory system, a default of a major party on derivatives contract could lead to cascading losses at a big banks and brokerage firms. As a response to the negative effect of derivatives, the United States of America promulgated the Dodd-Frank Act. The Dodd-Frank Act provides for mandatory central clearing of certain derivatives trades. In EU, the European Market Infrastructure Regulation(‘EMIR’) intends to impose obligations similar to those of the Dodd-Frank Act. In Korea, the Financial Investment Services and Capital Markets Act('FISCMA') introduced regulatory reforms like US and EU in recent revision. The FISCMA contains two new provisions relating to OTC derivatives: (1) certain derivatives contracts concluded by certain qualified parties are eligible for CCP central clearing services by clearinghouses(Sec. 9(25)), mandatory or voluntary, (2) certain derivatives contracts by certain qualified parties should be cleared through CCP clearing services(Sec 166-3). This paper intends to analyze these provisions in respect of efficient operation and viability of CCP clearinghouses.