상법상 사채의 속성 (Characteristics of Corporate Bonds Issued under the Commercial Code of Korea)

서지정보

· 발행기관 : 한국상사법학회
· 수록지 정보 : 상사법연구 / 31권 / 3호 / 9 ~ 58페이지
· 저자명 : 박준

초록

Section I of the paper mentioned that by amendments to the Commercial Code, which took effect on April 15, 2012, the types of corporate bonds which can be issued by a company(chu-sik-hoe-sa) was expanded and that the concept of corporate bonds now include derivatives-embedded bonds as well as convertible bonds, bonds with warrants, exchangeable bonds and profit-participation bonds. Such a change to the scope of corporate bonds necessitates a review of the characteristics of corporate bonds under the Commercial Code.
Section II reviewed the traditional views on the characteristics of corporate bonds and the legislation in certain other countries.
Section III reviewed the characteristics of corporate bonds under the amended Commercial Code. Corporate bonds under the Commercial Code have two basic elements, (i) debt embedded in (ii) tradable instruments.
Traditional bonds represented an issuer’s obligation to repay principal and pay interest on the principal. However, due to the inclusion of derivative-embedded bonds, the amount payable under which is determined by reference to the price of a certain underlying asset or index, neither the repayment of principal nor the payment of interest is an indispensable element of corporate bonds under the amended Commercial Code. It is sufficient that certain debt or other obligation to pay or to deliver something substitutable is represented by the instrument. Corporate bonds are tradable as negotiable or quasi-negotiable instrument and thus fungibility is another characteristic of corporate bonds.
Section IV reviewed various types of securities which may raise the issue of whether such securities should be treated as corporate bonds. This paper argued that compulsory convertible bonds, payment obligations under which lapse if not converted, and automatic convertible bonds which are converted upon the lapse of a certain time period should be treated as a kind of equity issuance transaction rather than corporate bonds because such bonds do not represent any debt to their holders. However, conditional capital securities, the payment obligation under which will be diminished or expire upon the occurrence of specified events, fall under the scope of corporate bonds. Certain other types of conditional capital securities, which are converted into equity upon the occurrence of specified events, and reverse convertible bonds, which are convertible by the issuing company, falls under the concept of corporate bonds but it is questionable whether the issuance of such bonds are envisaged by the current Commercial Code provisions concerning convertible bonds. It is not questionable that equity-linked securities issued under the Capital Markets Act fall within the scope of corporate bonds. Although it may be controversial, it is more easonable to view cash-settled equity-linked warrants as corporate bonds.

영어초록

Section I of the paper mentioned that by amendments to the Commercial Code, which took effect on April 15, 2012, the types of corporate bonds which can be issued by a company(chu-sik-hoe-sa) was expanded and that the concept of corporate bonds now include derivatives-embedded bonds as well as convertible bonds, bonds with warrants, exchangeable bonds and profit-participation bonds. Such a change to the scope of corporate bonds necessitates a review of the characteristics of corporate bonds under the Commercial Code.
Section II reviewed the traditional views on the characteristics of corporate bonds and the legislation in certain other countries.
Section III reviewed the characteristics of corporate bonds under the amended Commercial Code. Corporate bonds under the Commercial Code have two basic elements, (i) debt embedded in (ii) tradable instruments.
Traditional bonds represented an issuer’s obligation to repay principal and pay interest on the principal. However, due to the inclusion of derivative-embedded bonds, the amount payable under which is determined by reference to the price of a certain underlying asset or index, neither the repayment of principal nor the payment of interest is an indispensable element of corporate bonds under the amended Commercial Code. It is sufficient that certain debt or other obligation to pay or to deliver something substitutable is represented by the instrument. Corporate bonds are tradable as negotiable or quasi-negotiable instrument and thus fungibility is another characteristic of corporate bonds.
Section IV reviewed various types of securities which may raise the issue of whether such securities should be treated as corporate bonds. This paper argued that compulsory convertible bonds, payment obligations under which lapse if not converted, and automatic convertible bonds which are converted upon the lapse of a certain time period should be treated as a kind of equity issuance transaction rather than corporate bonds because such bonds do not represent any debt to their holders. However, conditional capital securities, the payment obligation under which will be diminished or expire upon the occurrence of specified events, fall under the scope of corporate bonds. Certain other types of conditional capital securities, which are converted into equity upon the occurrence of specified events, and reverse convertible bonds, which are convertible by the issuing company, falls under the concept of corporate bonds but it is questionable whether the issuance of such bonds are envisaged by the current Commercial Code provisions concerning convertible bonds. It is not questionable that equity-linked securities issued under the Capital Markets Act fall within the scope of corporate bonds. Although it may be controversial, it is more easonable to view cash-settled equity-linked warrants as corporate bonds.

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