신디케이티드대출의 증권성에 관한 고찰 - 미국 연방대법원 판결을 중심으로 -

The issue of whether syndicated loans could be classified as securities has come under increasing scrutiny in recent years. This issue bears great importance, particularly to those pursuing syndicated loan transactions since, depending on how this issue is resolved, what they perceive to be ʻsyndicated loansʼ may instead be classified as ʻsecuritiesʼ, contrary to their commercial intentions. Consequently, they may become subject to complex legal and regulatory requirements imposed by the applicable securities laws and face potential civil and criminal sanctions and liabilities which would not otherwise have been the case had no such issue been raised. In an effort to prevent the above-mentioned scenario from manifesting in reality, those that contemplate pursuing syndicated loan transactions would likely take various legal, contractual and practical measures and other precautions to ensure that the transactions at hand would not be classified as securities under the applicable securities laws. Taking such extra measures and precautions would not, however, be without costs; the overall transaction costs for arranging and structuring syndicated loans would likely substantially increase and such increase in transaction costs could discourage potential participants from engaging in syndicated loan transactions in the first place. This would ultimately hinder syndicated loans from being relied on as a means to raising funds (separate and independent from other means to raising funds such as issuance of bonds, shares or other forms of securities). Thus, the issue of whether syndicated loans could be classified as securities is something that has far-reaching implications which may adversely affect not only the immediate parties to syndicated loan transactions but also all actual and potential participants to the capital markets, whether they be companies trying to raise funds or financial institutions seeking to supply funds. With the above in mind, this paper first looks into why this particular problem has come under the spotlight in recent years, most notably in the U.S. (it being the single largest syndicated loan market in the world), and ascertains some of the major problems that could arise if syndicated loans were in fact classified as securities. This paper then examines whether syndicated loans could be classified as securities under our current laws, followed by an in-depth study on some of the key discussions that have taken place on this topic in the U.S., with a particular focus on three U.S. Supreme Court decisions that have shaped much of the legal discourse in the U.S. so far. As part of such study, this paper analyzes the validity of the most recent and authoritative U.S. Supreme Court decision on this topic, namely Kirschner decision and offers concluding thoughts on how such decision could guide us if similar issues were to be raised in Korea.