외화증권 예탁법리의 정립 방향에 관한 고찰 - 대법원 2010. 1. 28. 선고 2008다54587 판결에 대한 평석을 겸하여 -

Under Korean law, foreign securities mean securities that are denominated by a foreign currency or that can be paid from a foreign country. Foreign securities transactions mean trading of such foreign securities as objects of the trading. Accordingly, foreign securities transactions refer to the trading activities of sales or collateral provision of securities, without regard to the place where such activities occur. In general, however, foreign securities transactions mean transactions of securities entered into abroad and they involve the concept of international securities deposit intermediated by foreign custodians and/or international central securities depositories. In the international securities deposit, firstly, conflict of laws issues must be clarified and then substantive norms determined by choice of law rules must also be clearly understood. This article, above all, tries to introduce and analyse a Supreme court's decision rendered on 28 January 28 2010 (the 2008Da54587 Decision). This welcoming decision develops its analysis differentiating corporate and contractual issues from deposit law ones. This decision, however, does not or escape to squarely cover international securities deposit issues, and shows some flaws in its reasoning. Secondly, this article deals with foreign shares listed on the Korea Exchange from the broad concept of international securities transactions, focusing on deposit law issues. From the general concept of international securities transactions, this article also underscores the importance of introduction of a clear choice of law provision in the Korean Private International Law Act. In addition, this article shows urgent necessity of substantive norms applicable to the proprietary issues of internationally deposited securities transactions, proposing amendment of the Financial Services and Capital Market Act. Currently, deficient is the detailed substantive discussion as to foreign securities deposit involved in foreign securities transactions. It is regretable that the financial supervisory authority, as well as the Korea Securities Depository that is in charge of the practices of foreign securities deposit does not actively try to solve such issues, even if foreign securities deposit issues that cover investors' proprietary rights are crucial. The Shanghai-Hong Kong Connect implemented from 17 November 2014 functions as a trigger of voluminous involvements of individual investors in foreign securities transactions. This article wishes, in the near future, more discussion and legislative overhaul as to foreign securities deposit, stimulated by such environmental change as the Shanghai-Hong Kong Connect.