독일법상 증권간접보유자의 법적 지위

• 영문명: Legal Position of Indirect Securities Holder in Germany
• 발행기관: 한국사법학회(구 한국비교사법학회)
• 저자명: 김이수(I-Su Kim)
• 간행물 정보: 『비교사법』비교사법 제10권 4호, 313~347쪽, 전체 35쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2003.12.01

영문 초록

Germany has a special statute(called "Depotgesetz") on the indirect securities holding system. Under the indirect securities holding system of Depotgesetz, final investors are regarded as co-owner of the securities deposited with the central securities depository. Despite the difference of securities holding system, indirect securities holder owns securities like direct securities holder. This system provides intermediary's customers with priority over the intermediary's creditors in the bankruptcy of the intermediary. But this indirect holding arrangements has fatal weak points. First, there are theoretical difficulties in applying bona fide purchase rule. According to bona fide purchase rule, transferee must rely on some appearances that make transferor look like true owner. But, under Deutsch indirect securities holding system, joint possession of transferor is unfit for the appearance required in bona fide purchase rule. Secondly, the co-ownership approach generates difficulties in adopting PRIMA rule. The co-ownership approach requires the application of lex situs where securities are located to the cross-border securities transactions. It is thinkable to incorporate special provisions adopts PRIMA rule into the statute. Why should indirect securities holder be treated differently from direct securities holder? Both securities holders equally own "securities" regardless of the shape of securities holding. Recharacterisation of indirect securities holding system would be needed to justify PRIMA. Korea has similar legal problems as Germany, because Korean indirect holding system vests ultimate investors with co-ownership of fungible securities holding under Securities Transaction Act. German debates on the legal position of indirect securities holder could give some lessons to resolve our problems.

목차

Ⅰ. 서설

Ⅱ. 혼장예탁의 법률관계

Ⅲ. 혼장예탁구조의 문제점

Ⅳ. 증권간접보유구조의 새로운 모색

Ⅴ. 결론

참고문헌

[ABSTRACT]