총수익스왑(TRS1))에 관한 연구 - 상법상 상호주식 규제여부에 대한 서울남부지법 2015. 6. 11. 2014가합4256 판결을 중심으로 = A study on “Total return swap” - Seoul southern district court June 11th 2015 2014gahap4256 judgement about whether regulating mutual owned stocks on the Korean commercial law

다국어 초록 (Multilingual Abstract)

Total return swap(TRS) is an OTC derivative in which one party(Total return payer) purchaces an underlying asset like a share while the other party(Total return receiver) acquires the return of an underlying asset, which includes both the income it generates and any capital gains. In TRS, therefore a payer acquires a voting right from a share and a receiver gains an economic ownership. Usually while a payer is a financial institution a receiver is a investor, so a payer tends to be only interested in commissions paid by a receiver, not his voting right. In eventually a payer usually exercises the vote following his client(a receiver)``s intention, and using this, a receiver wants to evade various legal regulations based on the number of voting rights. In this behalf, we call a receiver acquiring a “hidden ownership”. This case concerning a hidden ownership shown in TRS, deals with whether one company``s shares which other company holds are Mutual owned stocks limited voting rights under Article §369. 3. of the Korean commercial law, when a company who acquires over 10% of other company``s total number of issued stocks, sells a part of that stocks by means of TRS to deplete below 10% of total number of issued stocks. In this case, June 11th 2015, judges of Seoul southern district court decided in favor of the defendant by reason that the shares are not Mutual owned stocks“ acquired on it``s own account and applied standards as follows. ① Whether a receiver gains a right to order a payer to exercise the votes or a right to claim for the shares preferentially, ② Whether a payer can sell the shares at any time at his discretion without a receiver``s intention. ③ Whether a receiver raised funds to purchase the shares and whether a receiver gains all of profits and losses from the shares. However theses standards are hardly rational or appropriate in the process of applying them concretely in this TRS case. Therefore we have to consider whether regulating TRS in reference to applying Article §369 (3) and how regulate it. In this study, I think we have to regulate TRS in the case of Mutual owned stocks by means of limiting voting rights and consider various solution plans like a theory of interpretation or a theory of legislation.