금융거래에서의 담보물의 재활용

Financial collateral provided in certain financial transactions such as credit by a prime broker, derivatives transactions, repurchase agreements are sometimes used for other transactions by a collateral taker. It is possible because the collateral taker is entitled to sell, pledge, assign or otherwise dispose of, or use in its business, the collateral it holds pursuant to a collateral agreement (in case of the security collateral arrangement), or the ownerships of the financial collateral are transferred to the collateral taker (in case of the title transfer collateral arrangement). In South Korea, some provisions relating to reuse of financial collateral were inserted in the Financial Investment Services and Capital Markets Act. However, legal uncertainties in respect of the effects of reuse of financial collateral exist. Security interests such as pledge and yando tambo do not fully match with the reuse of financial collateral, because a collateral taker who has the right of reuse can dispose the collateral even before the event of default occurs. There are recharacterization risks that the security collateral arrangement would be regarded as a title transfer arrangement, and vice versa. Therefore, it is necessary to amend the laws to address those issues. Moreover, reuse of collateral entails risks that a collateral provider may lose the ownership in collateral and would be put in a position as an unsecured creditor rather than an owner of the collateral when a collateral taker becomes insolvent. Accordingly, a collateral provider should be aware of the risk of reuse of the collateral when it consents to it. For this, the laws and regulations should provide some measures to protect the customers such as enhanced disclosure requirements.