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Laws of the Republic of Korea |
1
ENFORCEMENT DECREE OF THE REGISTRATION OF BONDS AND DEBENTURES ACT
Presidential Decree No. 5543, Mar. 4, 1971
Amended by Presidential Decree No. 13634, Apr. 28, 1992 Presidential Decree No. 14438, Dec. 23, 1994
Presidential Decree No. 15761, Apr. 1, 1998
Presidential Decree No. 16143, Mar. 3, 1999
Presidential Decree No. 18312, Mar. 17, 2004
Presidential Decree No. 20171, Jul. 18, 2007
Presidential Decree No. 20653 Feb. 29, 2008
CHAPTER GENERAL PROVISIONS
Article 1 (Purpose)
The purpose of this Decree is to prescribe the matters delegated by the Registration of Bonds and Debentures Act and the matters necessary for the enforcement thereof.
[This Article Wholly Amended by Presidential Decree No. 16143, Mar. 3, 1999] Article 1-2 (Registrar)
(1) The judicial person who is allowed to register with the Financial Services
Commission and to handle the business of bond registration
pursuant to
the provisions of Article 3 of the Registration of Bonds and Debentures
Act (hereinafter referred to as the "Act")
shall be the one falling under
any of the following subparagraphs:
1. Korea Securities Depository pursuant to the provisions of Article 173
of the Securities and Exchange Act; or
2. Financial institutions pursuant to the provisions of Article 3 (1) 1
through 4 of the Enforcement Decree of the Securities and
Exchange
Act.
(2) Those who intend to register pursuant to the provisions of paragraph
(1) shall submit an application for registration stating
the matters in the
following subparagraphs to the Financial Services Commission:
by Presidential Decree No. 20653, Feb. 29, 20088>
1. Trade name;
2. The address of main office;
3. Matters regarding capital;
4. Matters regarding officers; and
5. Matters necessary for the examination of registration other than those
listed in subparagraphs 1 through 4, which are laid down
by the Financial
Services Commission.
(3) The papers in the following subparagraphs shall be affixed to the
application for registration pursuant to the provisions of
paragraph (2):
1. The articles of incorporation;
2. Balance sheet as of the date of application; and
3. A paper stating the names of shareholders (excluding those who hold
less than 1/100 of the number of total outstanding stocks
in the case
of listed corporations pursuant to the Securities and Exchange Act)
and the number of stocks held by each shareholder.
(4) Where the Financial Services Commission has received an application
for registration pursuant to the provisions of paragraph
(2), it shall not
reject the registration thereof except for the cases of false statement on
important matters or omissions in
the application for registration or attached
papers. After registration, it shall hand over a certificate of registration
stating
the matters of the following subparagraphs to the applicant: 1. The number and date of registration;
2. The trade name and address of the company;
3. The name of representative; and
4. The detail of registration.
(5) When the Financial Services Commission has rejected registration
pursuant to the provisions of
paragraph (4), it shall inform the applicant
of the purport without delay.
[This Article Newly Inserted by Presidential Decree No. 16143, Mar. 3, 1999]
Article 2 (Precedence of Rights concerning Registered
Bonds)
(1) The precedence of registered rights concerning registered bonds shall
be according to the order of registration.
(2) The order of registration shall be according to the number of precedence
ENFORCEMENT DECREE OF THE REGISTRATION OF BONDS AND
DEBENTURES ACT
3
when registered in the same column of the registration form, and shall
be according to the receipt number when registered in the
separate column.
Article 3 (Precedence of Additional Registration)
The precedence of additional registration shall be according
to the precedence
of main registration. However, precedence between additional registrations
shall be according to the order thereof.
CHAPTER REGISTRATION PROCEDURE
SECTION I GENERAL
PROVISIONS
Article 4 (Persons Qualified for Registration)
(1) Registration shall be not be made unless an interested party requests
or a public office entrusts.
(2) The provisions of registration due to the request of an interested party
shall apply mutatis mutandis to the registration on
entrustment unless
otherwise prescribed.
Article 5 (Applicant for Registration)
(1) Registration shall be applied by bondholders, pledgees and other parties
interested in the bonds pursuant to the provisions
of Article 4 (2) of the
Act.
(2) When there is a counterpart in the transfer, establishment of right
of pledge, etc. in the case of paragraph (1), persons privileged
to register
and registration obligators or agents thereof shall jointly apply. In this
case, when a letter of consent by the registration
obligator is attached
to the application, the persons privileged to register may apply alone.
(1) When the confiscation of registered bonds is intended, the executive
agency concerned shall, without delay, entrust the registration
of
ENFORCEMENT DECREE OF THE REGISTRATION OF BONDS AND
DEBENTURES ACT
4
confiscation to the registrar by submitting a letter of entrustment together
with an original copy or certified copy of confiscation
order.
(2) The provision of paragraph (1) shall apply mutatis mutandis, if any,
to the provisional confiscation or provisional
disposition of registered bonds.
(1) Where it is recognized as necessary in the case of Article 8, the executive
agency concerned shall entrust the change in the
indication of the holder
of registration title or the registration of transfer of rights due to inheritance
or other general succession
to the registrar in place of a holder of registration
title, an heir thereof or other general successors.
(2) The provisions of Articles 12 and 16 (2) shall apply mutatis mutandis
to the registration in paragraph (1).
Article 10 (Application for Registration)
(1) Following matters shall be stated in the application for registration,
and signature and seal shall be affixed thereto:
1. The name of bond issuer, kind of bond, and the number of times and
serial number (hereinafter referred to as the "name of bond")
in case
the total amount of bond is issued by dividing for several times;
2. The name and address of applicant;
3. The name and address of the person who applies for registration as
proxy;
4. The cause and date of registration;
5. The purpose of registration;
6. The name of registrar;
7. The date of application;
8. When the matters regarding the termination of rights are prescribed,
the fact thereof; and
9. When the share is fixed in case the persons privileged to register are
numerous, the share thereof.
(2) The papers in the following subparagraphs shall be affixed to the
application in paragraph (1):
1. A registration certificate of the rights of registration obligator (limited
ENFORCEMENT DECREE OF THE REGISTRATION OF BONDS AND
DEBENTURES ACT
5
to the already registered bonds);
2. When permission, approval or consent by a third party regarding the
cause of registration is required, the verifying papers thereof:
Provided,
That by entering the signature and seal of the third party in the
application, submission may be omitted; and
3. Where the application for registration is made by a proxy, the papers
verifying the authority.
(3) A certified copy of family register or other papers corresponding thereto
shall be affixed to the application (including applications
in electronic
document) in the case of following subparagraphs: Provided, That the
information on the papers to submit can be confirmed
through the joint
use of administrative information pursuant to the provisions of Article
21 (1) of the Electronic Government Act,
such confirmation may substitute
for the papers to submit:
1. When the cause of registration is inheritance or other general succession;
2. When the applicant is a successor of a person privileged to register
or of a registration obligator, or a general successor; and
3. When registration for the change of indication of the holder of registration
title is applied.
(4) Registration regarding several kinds of bonds with the same name to
be dealt by the same registrar may be applied in the same
application
form only if the purpose of registration is the same.
Article 11 (Registration due to Adjudication)
When an application for registration based on adjudication is made, the
original copy or a certified copy of adjudication shall
be affixed thereto.
In this case, the affixation of papers listed in Article 10 (2) 1 and 2 shall
not be needed.
Article 13 (Rejection of Registration)
(1) Where it falls under any of the following subparagraphs, the registrar
ENFORCEMENT DECREE OF THE REGISTRATION OF BONDS AND
DEBENTURES ACT
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shall reject registration:
1. Where the matters that have been applied are not the matters to be
dealt by the registrar concerned;
2. Where the matters that have been applied are not the matters to register;
3. Where the registered bond or the indication of right which is the purpose
of registration that have been stated in the application
does not conform
to the bond register;
4. Where the indication of registration obligator stated in the application
does not conform to the bond register: Provided, That
a certified copy
of family register is affixed pursuant to the provisions of Article 10
(3) 2, this shall not apply;
5. Where the matters stated in the application do not conform to the
papers submitted pursuant to the provisions of Article 10 (3)
or 11;
and
6. Where necessary papers have not been submitted or affixed.
(2) Where the applicant has failed to pay the fee pursuant to the provisions
of Article 13 of the Act, the registrar shall reject registration.
Article 14 (Registration for Change in Right)
When there is a third party having interest in the registration where the
registration for change in the right is applied, a written
consent by the
third party or the original copy or a certified copy of adjudication with
which to stand against the third person
shall be affixed.
Article 15 (Delivery of Certificate of Registration)
(1) When the registrar has completed registration, it shall
deliver a
certificate of registration as prescribed by the Ordinance of the Prime
Minister: Provided, That the registration has
been made pursuant to the
provisions of Article 6 (2) of the Act, a certificate of registration shall
be delivered after the notification
pursuant to the provisions of Article
50 has been received.
(1) Where errors and omissions are found in the registration after the
ENFORCEMENT DECREE OF THE REGISTRATION OF BONDS AND
DEBENTURES
ACT
7
completion of registration, the registrar shall, without delay, notify the
person privileged to register and registration obligator
of the purport.
(2) As for the case of registration in subrogation by creditor, the creditor
shall also be notified pursuant to
paragraph (1).
(3) The notification in paragraphs (1) and (2) may be made to only one
person where the persons privileged to register, registration
obligators or
creditors are numerous.
Article 18 (Correction of Registration)
The provisions of Article 14 shall apply mutatis mutandis to the case where
the registration is corrected.
Article 19 (Request for Recovery of Registration)
When there is a third party having interest in the registration where a
request
for the recovery of canceled registration is made, a written consent
by the third party or the original copy or a certified copy
of adjudication
with which to stand against the third person shall be affixed.
SECTION PROCEDURES FOR REGISTRATION OF
BONDS
Article 20 (Application for Registration of Unregistered Bonds)
(1) When requesting for the registration of unregistered bonds,
the
bondholders shall state the following matters in the application and affix
bond certificates (where there is a coupon for which
the date of payment
has not arrived, the coupon shall be included) thereto:
1. The face value of each bond to register;
2. The serial number and number of shares of a bond certificate;
ENFORCEMENT DECREE OF THE REGISTRATION OF BONDS AND
DEBENTURES
ACT
8
3. The number and period of payment when there is a coupon lost from
among the coupons for which the date of payment has not arrived;
and
4. The place where the redemption of bond and the payment of interest
shall be made.
(2) Where the registration of bond for which bond certificates have not
been issued is made, the paid-in amount of each bond and
the serial number
of bond to be issued shall be stated in the application in addition to the
matters of paragraph (1) 1 through
4, and the papers verifying the fact
shall be affixed.
Article 21 (Registration of Subscriber or Underwriter)
(1) Those who intend to subscribe or underwrite bonds may apply for
registration
in advance. In this case, they shall state the name of the person
to issue bonds (where there is a company entrusted with raising,
the
company) in the application in addition to the matters listed in Article
20 (1) 1 through 4 and shall submit it to the person
to float bonds concerned.
(3) The provisions of Article 20 (3) shall apply mutatis mutandis to the
case of paragraph (1).
9
SECTION PROCEDURE FOR REGISTRATION OF
SECURITY RIGHT
Article 23 (Registration of Establishment of Pledge Right)
(1) Where the registration of establishment of a pledge right (including
the case of sub-pledge) is applied, following matters shall be stated in
the application:
1. The face value, number of shares of the bond being the object of pledge
right and the serial number of bond certificates;
2. Claim amount;
3. Where matters regarding the period of redemption, interest, penalty
or indemnity as for the cause of registration has been laid
down, there
is a prescription pursuant the provisions of proviso of Article 334 of
the Civil Act, or a condition is attached to
the claim, the matters;
and
4. The name and address of the obligator when the person who has
established a pledge right is not an obligator.
(2) Where the registration of establishment of a pledge right is applied
as a security for claim which does not have a specific
amount for its purpose,
the amount of claim shall be stated in the application.
Article 24 (Transfer Registration of Pledge Right)
(1) Where the transfer registration of a pledge right is applied, it shall
be stated whether the secured bond certificate is transferred
altogether.
(2) Where the transfer registration of a pledge right is applied due to the
partial transfer of claim or subrogated
performance of claim, the amount
of claim being the object of transfer or subrogated performance shall be
stated in the application.
Article 25 (Transfer Registration of Pledge Right)
The registration of transfer of a pledge right and sub-pledge shall be made
by means of supplementary note.
Article 26 (Pledging of Registered Bond)
(1) When registration is applied pursuant to the provisions of Article 8
of the Act, following matters shall be stated in the application:
1. The face value and number of shares of each bond being the object
of security and the serial number of bond certificates;
2. The provisions of Acts and subordinate statutes for deposit; and
ENFORCEMENT DECREE OF THE REGISTRATION OF BONDS AND
DEBENTURES
ACT
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3. The indication of the holder of a security right.
(2) The application for registration pursuant to paragraph (1) shall be
made
only by the persons who intend to deposit.
(3) The provisions of Articles 24 and 25 may apply mutatis mutandis to
the transfer registration of security right in paragraph
(1).
SECTION PROCEDURES FOR TRUST
REGISTRATION
Article 27 (Trust Registration)
Where the trust registration of bonds is made, the trustee shall be the
holder of registration right and the truster shall be the
registration obligator.
Article 28 (Trust Registration Realizable by Trustee Alone)
The trust registration of bonds listed as in
the following may be applied
by trustees alone:
1. The trust registration of bearer bonds belonging to the trust property,
which has a mark of trust property pursuant to the provisions
of Article
3 (2) of the Trust Act in the bond certificate concerned;
2. The trust registration of the bonds belonging to a trust property pursuant
to the provisions of Article 19 of the Trust Act; and
3. The trust registration of bonds to restore pursuant to the provisions
of Article 38 of the Trust Act.
Article 29 (Subrogated Registration by Beneficiary or Truster)
(1) The beneficiary or truster may apply for trust registration in
subrogation
of trustee.
(2) The provisions of Article 12 shall apply mutatis mutandis to the
application for subrogated registration pursuant to the provisions
of
paragraph (1): Provided, That in this case, papers evidencing that registered
bonds are a trust property shall be affixed.
Article 30 (Method of Trust Registration)
(1) The trust registration of bonds shall be applied in the same paper
as the application for transfer registration of bonds due
to trust except
for the cases prescribed in paragraph (2): Provided, That to the case where
ENFORCEMENT DECREE OF THE REGISTRATION
OF BONDS AND
DEBENTURES ACT
11
beneficiary or truster applies for trust registration of bonds in subrogation
of trustee pursuant to the provisions of Article 29
(1), this shall not apply.
Article 31 (Transfer Registration of Bonds in case of Change in Trustee)
(1) When the transfer registration of registered bonds
is applied in the
case of change in trustee, papers verifying the change shall be affixed to
the application.
(2) The provisions of paragraph (1) shall apply mutatis mutandis to the
registration for modification being made in the case of
Article 26 (2) of
the Trust Act.
When the duty of trustee has come to an end due to decease, bankruptcy,
incompetence, quasi-incompetence or an order of dismissal
by juristic person
or competent administrative agency, the registration pursuant to Article
31 may be applied by the new trustee
or other trustee alone. This also
holds true when the duty of the juristic person who is a trustee has come
to an end due to dissolution.
Article 33 (Application for Trust Registration)
(1) Where the trust registration of bonds is applied, a paper stating the
following matters shall be affixed to the application:
1. The name and address of truster, trustee, beneficiary and trust
administrator;
2. The purpose of trust;
3. The method of managing trust property;
4. The cause of close of trust; and
5. Other clauses of trust.
(2) The applicant shall put his name and seal to the paper in paragraph
ENFORCEMENT DECREE OF THE REGISTRATION
OF BONDS AND
DEBENTURES ACT
12
(1).
(1) The papers affixed to the application pursuant to the provisions of
Article 33 shall serve as the original trust register.
(2) The original trust register shall be deemed as part of the bond register,
and the entry therein shall be deemed as registration.
Article 35 (Appointment and Dismissal of Trust Administrator or Trustee)
(1) When the court has appointed or dismissed the trust
administrator,
it shall, without delay, entrust the entry thereof in the original trust register
to the registrar. This also holds
true when the competent administrative
agency has appointed a trust administrator.
(2) The provisions of paragraph (1) shall apply mutatis mutandis to the
case where the court or competent administrative agency
has dismissed
the trustee.
Article 38 (Change in Matters of Trust Registration)
(1) When there is a change in the matters listed in the subparagraphs
of Article
33 (1) except for the cases of Articles 31, 32 and 36, the trustee
shall, without delay, apply for the entry in the original trust
register by
affixing papers verifying the change.
(2) The beneficiary or truster may make an application pursuant to
paragraph (1) in subrogation of the trustee.
(3) The provisions of Article 12 shall apply mutatis mutandis to the
application pursuant to the provisions of paragraph (2).
Article 39 (ex officio Entry by Supplementary Note in Bond Register )
ENFORCEMENT DECREE OF THE REGISTRATION OF BONDS AND
DEBENTURES
ACT
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When the registrar enters in the original trust register pursuant to the
provisions of Article 35 (2), it shall state the purport
in the bond register.
SECTION PROCEDURES FOR REGISTRATION
CONCERNING CANCELLATION
Article 40 (Cancelation of Registration)
(1) When bondholders apply for the cancellation of bond registration
pursuant to the provisions of Article 20 (1) and (2) or Article
21 (1),
they shall state the amount and number of shares of each bond and the
serial number of bond certificates in the application
and shall submit a
certificate of registration on the right of bondholders.
(2) The provisions of Article 20 (3) shall apply mutatis
mutandis to the
case of paragraph (1).
(1) When the person privileged to register is unable to apply for the
cancellation of registration because the registration obligator's
whereabouts
is unknown, he/she may apply for public summons in accordance with the
provisions of the Civil Procedure Act.
(2) When there is a judgment of nullification in the case of paragraph
(1), the person privileged to register alone may apply for
the cancellation
of registration by affixing the original copy or a certified copy thereof to
the application.
Article 42 (Cancellation of Registration in cases other than Trust Property)
(1) Where registered bonds belonging to trust property
becomes not to
belong to trust property due to transfer, the cancellation of trust registration
shall be applied in the same paper
as the application for transfer registration.
(2) The provisions of paragraph (1) shall apply mutatis mutandis to the
case of transfer
due to the close of trust of registered bonds belonging
to trust property.
14
(1) When procedures for compulsory execution on registered bond have
been completed, the administrative agency concerned shall,
without delay,
entrust the registrar to cancel the seizure registration by affixing the papers
verifying it to the written entrustment.
(2) The provisions of paragraph (1) shall apply mutatis mutandis to the
case where provisional seizure or provisional disposition
on registered bond
has been completed.
When there is a third party having an interest in registration in case where
the cancellation of registration has been applied,
a written consent of the
third party, or the original copy or a certified copy of judgment with which
it is possible to stand against
the third party shall be affixed to the
application.
CHAPTER MISCELLANEOUS PROVISIONS
Article 46 (Provisions Applicable mutatis mutandis)
In applying the provisions of Articles 491 (4) and 492 (2) of the Commercial
Act and Articles 45 (2) and 84 (2) of the Secured Debentures Trust Act
to the bondholders of registered bearer bonds, the deposition
of a certificate
of registration shall be deemed as the deposition of bond certificates.
Article 47 (Application for Issuance of
Bond Certificates)
(1) When bondholders apply for the issuance of bond certificates pursuant
to the provisions of Article 5 (3)
of the Act, they shall submit an application
for the issuance of bond certificates together with an application for the
cancellation
of registration of bond.
(2) Following matters shall be stated in the application for the issuance
of bond certificates, and applicants shall put their name
and signature
therein:
1. The name of bond;
ENFORCEMENT DECREE OF THE REGISTRATION OF BONDS AND
DEBENTURES ACT
15
2. The amount and number of shares of each bond to apply for issuance
and the serial number of bond certificates;
3. The name and address of applicant;
4. The name and address of proxy when applying by a proxy;
5. The name of person to issue credit; and
6. The date of application.
(3) When it is recognized that the registration of bonds has to be cancelled
in the case of an application
in paragraph (1), the registrar shall, without
delay, state the purport in the application for the issuance of bond certificates
by supplementary note and shall deliver it to the person who is to issue
bond certificates.
(4) When the person who is to issue bond certificates has received the
application in paragraph (3), he/she shall, without delay,
deliver the bond
certificates that have been applied for issuance to the registrar.
Article 48 (Notification in case of Redemption of Registered Bond)
(1) Where a person who has issued bonds has redeemed registered
bonds,
he/she shall, without delay, notify it to the registrar by submitting papers
verifying the fact except for the cases of
redemption to a company entrusted
with the flotation of bonds or a trust company pursuant to the Secured
Debentures Trust Act.
The same shall apply to the case where a trust
company pursuant to the Secured Debentures Trust Act or a person who
underwrote
the total bond pursuant to the provisions of Article 23 (1)
of the same Act has redeemed the registered bond.
(2) The provisions
of paragraph (1) shall apply mutatis mutandis to the
case where the amount of redemption has been paid to the bondholders
concerned
by a company entrusted with the flotation of bonds, which received
redemption of bonds for registered bondholders, or by a trust
company
pursuant to the Secured Debentures Trust Act.
(3) When the registrar receives notification pursuant to the provisions
of paragraphs (1) and (2), it shall, without delay, enter
the cause in the
bond register ex officio and shall cancel the registration of the bond
concerned.
16
issued a bond which the registrar concerned shall handle for the delivery
of the sample of the bond that he has issued.
Article 50 (Notification of Entry in Original Bond Register)
When a bond issuer has completed entry in the original bond register
pursuant to the provisions of Article 10 (2) of the Act, he/she shall, without
delay, notify the registrar of the purport.
Article 51 (Inspection)
When the president of the Financial Supervisory Service executes inspection
pursuant to the provisions of Article 14 (2) of the
Act, he/she shall show
a certificate indicating the authority.
Article 52 (Imposition and Collection of Fine for Negligence)
(1) When a fine for negligence pursuant to the provisions of Article
17
(3) of the Act is imposed, the person being the object of disposition of
a fine for negligence shall be notified to pay it by
being told clearly of
the fact of violation, amount of fine for negligence, etc. after the act of
violation concerned is investigated
and confirmed.
(2) When the Financial Services Commission intends to impose a fine
for negligence pursuant to the provisions of
paragraph (1), it shall give
the person being the object of a fine for negligence to express his/her opinion
orally or in writing
by specifying a period of 10 days or more.
[This Article Newly Inserted by Presidential Decree No. 15761, Apr. 1, 1998]
ADDENDUM
This Decree shall enter into force on the date of its promulgation.
ADDENDA
This Decree shall enter into force on the date of its promulgation.
ENFORCEMENT DECREE OF THE REGISTRATION OF BONDS AND
DEBENTURES
ACT
17
Article 2 Omitted.
ADDENDA
This Decree shall enter into force on the date of its promulgation.
Articles 2 through 5 Omitted.
ADDENDA
This Decree shall enter into force on the date of its promulgation.
Articles 2 through 4 Omitted.
ADDENDUM
This Decree shall enter into force on the date of its promulgation.
Articles 2 through 3 Omitted.
ADDENDA
This Decree shall enter into force on the date of its promulgation. (Proviso
Omitted.)
Article 2 Omitted.
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