자산유동화 규제 체계의 검토

Regarding Koreaʼs securitization financing regulation system, several problems have been addressed such as the bloating of unregistered securitization transactions. There may be various reasons for these problems to arise, but fundamentally, the Asset-Backed Securitization Act stipulates the scope of securitization transactions quite comprehensively in terms of (i) the scope of securitization underlying assets, (ii) the work scope of the securitization entity, and (iii) the securitization securities issuing structure, so the economic substance of securitization has not been clearly identified in the Act. Securitization has traditionally served as a means of shadow banking, which is one of the market-based credit intermediations that replaces the three functions performed by banks - liquidity transformation, maturity transformation and credit transformation, and the purpose is to create new informationally-insensitive debts that can be traded on a large scale in the capital market, which can replace the role of bank deposits. These characteristics of securitization financing are clearly distinguished from the economic substances of collective investment, of which the main purpose of investment is to realize profits from changes in the market value or fair value of investment assets. Accordingly, the Rule 3a-7 of the United States clearly stipulates securitization financing in each aspect of the scope of assets, the work scope of the entity, and the securities issuing structure to separate securitization from investment companies of the Investment Company Act of 1940. Based on the broad definition of securitization under the Asset-Backed Securitization Act, securitization transactions can be divided into the following types according to its economic characteristics : (a) Eligible Asset - Preservation, (b) Eligible Asset – Management, (c) Non-Eligible Asset – Preservation, and (d) Non-Eligible Asset – Management, respectively. The Eligible asset - Preservation type is the securitization financing stipulated in the Rule 3a-7, and is the very type that functions as a means of shadow banking. Almost all securitization transactions in Korea belong to this type. On the other hand, the Management type can be regarded as collective investments in terms of economic substance, and the Non-Eligible Asset – Preservation type is also clearly distinguished from the Eligible Asset – Preservation type in terms of investment purposes in that investors seek to realize investment profits due to changes in the market value of underlying assets. Recently, new types of investments led by so-called ʻfractional investmentʼ have emerged in Korea, and the above classification of types of securitization transactions can function as a useful measure in identifying the economic substance and legal structure of such new investment demand. In the long run, it is necessary to consider (i) narrowing down the regulation target of Asset-backed Securitization Act into the Eligible Asset – Preservation type as in the United States, (ii) designing separate regulation system for the Eligible Asset – Preservation and the Non-Eligible Asset – Preservation types, respectively, and (iii) maintaining consistency of regulation system between Management types and collective investment.