글로벌 금융위기 이후 자산유동화거래에 대한 법적 규제의 현안과 개선방향

The Law Concerning Asset-Backed Securitization (the “Securitization Law”),which was promulgated in 1998, has made significant contributions to thepromotion of asset-backed securities markets in the Republic of Korea. Sincethe occurrence of the global financial crisis, however, we have seeninternational trend of strengthening the regulation of financial industry,including securitization. Further, during the recent several years, thetransaction volume of securitization which is implemented outside theSecuritization Law (the “Non-Registered Securitization”) has been significantlyincreasing. In oder to better protect the investors’ interests and the stabilityof the financial system under the changed environments, it is time to makeimprovements to the overall regulatory scheme and the oversight andregulation with regard to securitization. This article compares and analayzesthe recent transactional trends and regulation of securitization in the U.S.,Japan and Korea and proposes that the following improvements be made:First, it is necessary to establish clear statutory guidelines for thedistinction between collective investments and securitization. The FinancialInvestment Services and Capital Markets Act (the “Capital Markets Act) hasestablished a comprehensive definition for the term “collective investment”,which belongs to one of the financial investment services regulated underthe Capital Markets Act and then, exempts the securitization transactionseffected under the Securitization Law from the regulation of collectiveinvestments. Due to the lack of statutory guidelines, it is not clear how theNon-Registered Securitization may be distinguished from the collectiveinvestment. Therefore, in order to minimize the legal uncertainties and thepossibility for regulatory arbitrage, it is necessary to establish clear statutoryor regulatory guidelines to distinguish “securitization” from “collectiveinvestments.” Secondly, it is desirable to strengthen the disclosure regulationsapplicable to securitization under the Capital Markets Act, particularly, withrespect to the Non-Registered Securitization. Finally, it is desirable tostrengthen the oversight and regulation of the Non-Registered Securitizationfor better protection of investors’ interests and for the sound investmentpractices. For this purpose, the Securitization Law needs to be improved. Itmay also be considered making certain provisions of the Securitization Lawmandatorily applicable to the Non-Registered Securitization. With respect tothe securitization transactions whose underlying assets are derivatives orderivatives-linked securities, it would be desirable to treat such transactionsbased on their economic substance and regulate similarly to the derivativesor derivatives-linked securities.