파생상품을 거래한 청산회원의 고객이 예치한 증거금의 보호법제에 관한 연구

Customers who trade futures contracts on the regulatory exchange or swap contracts in OTC market via clearing member deposit margin as collateral with its clearing member in Korea. Then clearing member deposit customers’margin and its own margin relating to derivatives contracts made for the benefit of itself with the KRX(a clearing house operating as central counter party(CCP) in derivatives market). KRX administers the margin clearing member deposited under the account of clearing member’s name, divided into sub-accounts of clearing member’s proprietary margin and customers’ margin. When one or more customers defalut on their obligation on derivatives contracts to the clearing member, the loss the clearing member suffers may be so large that it causes the clearing member to default on the obligation to the KRX(‘double default’). This may lead to “fellow customer risk”, which occurs if the CCP uses the margin of the non-defaulting customers of an insolvent clearing member to cover the obligation of the defaulting customers. Korean insolvency law gives the KRX authorities to govern the fate of customers’ margin in the default of a clearing member. This paper will firstly consider the realities of internal regime of the KRX to cope with double default in both derivatives market and OTC derivatives market. Then the problems of current regime will be identified and the way to improve it will be presented in this paper.