현행 기업법제상 수쿠크(Sukuk)의 활용방안

Korean companies for a long time have been keenly interested in attaining fuller and more direct participation in the Islamic financial markets. Due to the relatively unconventional characteristics of Sukuk which did not neatly fit into any category of permissible securities under existing Korean laws, however, the general understanding was that issuance of sukuk using Korean SPV was not possible. As the offshore SPVs are not subject to Korean laws, Korean companies may still pursue sukuk issuance using offshore SPVs, however, this structure is considered impractical due to certain tax barriers and the requirements under the Foreign Exchange Transactions Act applicable to the transactions between residents and non-residents of Korea. Until 2011, trust securities representing the beneficial interest of the trust could only be issued by licensed trust companies and only in connection with monetary trust agreements. The Trust Act of Korea was amended in 2011 to allow issuance of trust securities by any trustee for any type of beneficial interest. As a result thereof, it became possible for SPVs used in a sukuk transactions to issue sukuk representing the beneficial interest related to the underpinning sukuk assets held on trust by SPV for sukuk holders and sukuk so issued by a Korean SPV would constitute trust securities under the Financial Investment Services and Capital Markets Act of Korea("FISCMA"). This means there is no legal huddle to the sukuk transanstion strucuture involving Korean SPV anymore. Still, just like an offshore SPV structure, the Korean SPV structure may be inefficient due to additional tax burdens arising in connection with underpinning sukuk assets compared to the conventional bonds. Additional measures need to be taken to eliminate these tax barriers so as to level the playing field with conventional foreign currency bonds in terms of tax treatment.