전자증권제도의 도입에 따른 상법상 주주명부의 지위에 관한 고찰

A Review on the Status of Shareholder’ s List Under the Commercial Law in the Perspective of Introducing the Electronic Securities Law

The Commercial Act provided a basis for electronic registration of shares by newly establishing Article 356-2 through a revision in 2011, and, so-called, the Electronic Securities Act was enacted in March 2016. However, even though the ESA was enacted and the framework for electronic registration of shares was established, the specific implementation was not immediately implemented. Only after the Enforcement Decree of the ESA was prepared, the ESA came into effect from in June 2019. So-called “electronic securities” were born almost 10 years after the commercial law provided the basis for electronic registration of stocks in 2011. The ESA is enforced and electronic registration of stocks is made, so that the share is no longer issued. Instead, stocks were registered in the electronic registration account, and many changes were made to existing systems related to stocks under the commercial law. That is, from September 16, 2019, when the ESA came into effect, existing securities must be newly registered, and in this case, real securities that have already been issued will cease to be effective from the registration date. Naturally, a company that has electronically registered stocks under the ESA or the Commercial Law can no longer issue share. On the other hand, the ESA requires all matters related to issued shares to be registered in the electronic account register when the company issues stocks, and the matters registered in the electronic account register are consistent with the information in the shareholders list specified in the Commercial Act. Therefore, when a stock is registered in the electronic registration account, the registered person is registered as a shareholder in the shareholder list. As a result, there is no difference between the shareholders list and the actual shareholders, so the concept of the beneficiary shareholders can no longer exist and only the shareholders list in the commercial law remains even though the beneficiary shareholders list in the Capital Markets Act and the shareholders list in the commercial Act have been coexisting. The commercial Act still maintains the shareholder list system despite the new regulations regarding the electronic registration of stocks, and maintains a system for renaming shareholders. Because of this situation, the implementation of the ESA raises the need to further strengthen the functions of the shareholder list system under the current commercial Act, but at the same time, the existence of the shareholder list system itself may become unnecessary. Therefore, in this article, I would like to look more specifically at the main contents of the ESA and its improvement plans, including the issue of the status of the shareholders list under the commercial Act.