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In the wake of the global financial crisis of late 2008 many have argued that stronger regulatory reforms should have been done especially in the area of the over-the-counter (“OTC”) derivatives market. Accordingly, G20 leaders, including Korean government, have agreed since the G20 Pittsburgh Summit in 2009 to reform their financial regulatory framework of the OTC derivatives market so that it would promote increased transparency and reduce counterparty risk and systemic risk in the global OTC derivatives markets. One of the distinctive changes in the OTC derivatives markets that have been agreed by the G20 leaders was that standardised OTC derivatives transactions should be cleared through central counterparties(“CCPs”) in each of the jurisdictions by the end of 2012. The Financial Services Commission of Korea submitted a “Proposed Amendment to the Financial Investment Services and Capital Markets Act”(“Proposed Amendment”) to National Assembly in June 2012 which mandated that the standardised OTC derivatives transactions be cleared through clearing institutions (i.e., CCPs) to meet its G20 commitments on the OTC derivatives. However, the Proposed Amendment is still pending at the National Assembly as of August 2012 and thus any detailed regulations that are required to be drafted pursuant to the Proposed Amendment are yet to come.
This paper explores regulatory frameworks in other jurisdictions in Part II that are related to the implementation of CCPs for OTC derivatives and potential legal issues in Part III that may arise when the CCPs are implemented for the OTC derivatives transactions under the proposed legal structure in Korea. In particular, I argue that concept that enables the CCP to become the counterparty in the OTC derivatives transactions should be one that is similar to “novation” as opposed to the “assumption of obligation” while both of the methods are allowed in the Proposed Amendment. I also argue that in order to ensure the settlement finality for the OTC transactions between the CCP and its clearing members, clearing business rules of the clearing institution should clearly address that the close-out netting is allowed and the current Debtor Rehabilitation and Bankruptcy Act should be amended in a way that the settlement finality of the OTC transactions between the CCP and its clearing members is ensured in the case of the CCP"s default.
This paper explores regulatory frameworks in other jurisdictions in Part II that are related to the implementation of CCPs for OTC derivatives and potential legal issues in Part III that may arise when the CCPs are implemented for the OTC derivatives transactions under the proposed legal structure in Korea. In particular, I argue that concept that enables the CCP to become the counterparty in the OTC derivatives transactions should be one that is similar to “novation” as opposed to the “assumption of obligation” while both of the methods are allowed in the Proposed Amendment. I also argue that in order to ensure the settlement finality for the OTC transactions between the CCP and its clearing members, clearing business rules of the clearing institution should clearly address that the close-out netting is allowed and the current Debtor Rehabilitation and Bankruptcy Act should be amended in a way that the settlement finality of the OTC transactions between the CCP and its clearing members is ensured in the case of the CCP"s default.
#CCP
#센트럴 카운터파티
#중앙청산소
#청산기관
#장외파생상품
#청산
#결제
#금융투자상품거래청산회사
#자본시장과 금융투자업에 관한 법률
#청산업무규정
#한국거래소
#채무부담의 방법
#채무인수
#경개
#open-offer
#거래당사자방식
#일괄정산
#채무자회생 및 파산에 관한 법률
#G20
#EMIR
#CRD IV
#도드-프랭크법
#CFTC
#SEC
#CCP
#central counterparty
#clearing institution
#over-the-counter derivatives
#clearing
#settlement
#Korea Exchange
#Financial Investment Services and Capital Markets Act
#clearing business rules
#assumption of obligation
#novation
#open-offer
#close-out netting
#Debtor Rehabilitation and Bankruptcy Act
#G20
#EMIR
#CRD IV
#Dodd-Frank Act
#CFTC
#SEC
목차
초록
Ⅰ. 서설
Ⅱ. 장외파생상품거래 규제에 관한 비교법적 고찰
Ⅲ. 금융투자상품거래청산업 관련 법적 쟁점
Ⅳ. 맺음말
참고문헌
ABSTRACT
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UCI(KEPA) : I410-ECN-0101-2014-320-002993724