ปัญหาทางกฎหมายเกี่ยวกับการประกอบธุรกรรมซื้อคืนหลักทรัพย์

• Main Author: วรรณรัตน์ จันทร์แสงทอง
• Other Authors: ชยันติ ไกรกาญจน์
• Format: Theses and Dissertations
• Language: Thai
• Published: จุฬาลงกรณ์มหาวิทยาลัย 2003
• Subjects: ล้มละลาย; หลักทรัพย์ > กฎหมายและระเบียบข้อบังคับ; ธุรกรรมซื้อคืนหลักทรัพย์
• Online Access: https://digiverse.chula.ac.th/Info/item/dc:23303
• Institution: Chulalongkorn University

Repurchase transaction is one of the methods of short-term financial liquidity management. This method applies the mechanism of securities purchase and sale to turn the transaction into that of a secured short-term loan nature. In addition, this method produces short-term financing which has low financial cost for securities seller who wants a short-term cash flow and produces short-term investment which has low risk for securities buyer who wants to manage excess cash for maximum benefit. Under this transaction, the seller agrees to sell securities to the buyer and the buyer agrees to buy securities from the seller. On the repurchase date, the seller agrees to repurchase securities from the buyer and the buyer agrees to sell such securities to the seller. Therefore, repurchase transaction develops a new source of funding in the financial market beyond the inter-bank loan, the inter-finance loan and bond purchase and sale in the Bank of Thailand repurchase market which adds efficiency to and reduces restriction of the traditional source of funding. The study reveals that there are legal problems concerning TBMA/ISMA Global Master Repurchase Agreement : TBMA/ISMA GMRA (2000 VERSION) which is widely used in the United States of America and Europe and adopted for repurchase transactions under the Thai law. All these legal problems pose an obstacle to the status of the parties to the Agreement and related persons. The study deals with 4 legal issues as follows: (1) problems regarding the form of the Agreement; (2) problems regarding securities transfer in a repurchase transaction and legal effects of the transfer cancellation, fraud and preferential treatment of creditors according to the Civil and Commercial Code (CCC) and the Bankruptcy Act B.E. 2483 (1940); (3) problems regarding margin transfer and legal effects of the transfer cancellation, fraud and preferential treatment of creditors according to the CCC and the Bankruptcy Act B.E. 2483 (1940); and (4) problems regarding securities valuation in case of a breach of agreement and legal effects of a set-off according to the CCC and the Bankruptcy Act B.E. 2483 (1940). In this connection, the author presents results of the analysis of the above-mentioned legal problems as follows: 1. Repurchase transaction has the characteristics of being a movable property purchase and sale agreement pursuant to Section 453 and Section 456, paragraph 3, of the CCC. However, repurchase transaction does not has the characteristics of being a sale with the right of redemption agreement pursuant to Section 491 and a secured loan agreement pursuant to Section 650, Section 653 and Section 747 of the CCC. Consideration that repurchase transaction has the characteristics of being a movable property purchase and sale agreement conforms with the intention of the parties thereto and the ordinary usage of repurchase transaction agreements pursuant to Section 368 of the CCC. 2. Securities transfer as at the purchase date where the purchase price is lower than the market price of securities has the characteristics of being a traditional trade practice of a repurchase transaction. Therefore, this is unlikely to be construed as a fraudulent act against creditors pursuant to Section 237 of the CCC, Section 90/40, Section 113 and Section 114 of the Bankruptcy Act B.E. 2483, and preferential treatment of creditors pursuant to Section 90/41 and Section 115 of the Bankruptcy Act B.E. 2483. 3. Margin transfer is subject to the risk of potentially being characterized as a fraudulent act against creditors pursuant to Section 237 of the CCC, Section 90/40, Section 113 and Section 114 of the Bankruptcy Act B.E. 2483, and preferential treatment of creditors pursuant to Section 90/41 and Section 115 of the Bankruptcy Act B.E. 2483. 4. Securities valuation in the case of a breach of agreement is a method of calculating the amount of debt which will enable the debt that has reached its maturity in the case of a breach of agreement, namely repurchase price and value of securities, to be set-off against each other pursuant to Section 341 of the CCC, and Section 90/33 and Section 102 of the Bankruptcy Act B.E. 2483. In addition, securities valuation in the case of a breach of agreement which is done after the court has issued a receivership order or rehabilitation order, is unlikely to be construed as right of claim which the creditor acquires after the court has issued a receivership order or rehabilitation order. Therefore, this obligation can be set off pursuant to Section 90/33 and Section 102 of the Bankruptcy Act B.E. 2483.