日本におけるレポ訴訟 : 住友信託銀行のレポ訴訟について(一ノ瀬篤教授退任記念号)
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概要
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Bonds trade with repurchase agreement (RP) is a transaction which obliges the seller to contract with the buyer for repurchasing the bonds initially sold after a fixed time lapse, and is sometimes called conditional selling of bonds. RP is a trade which combines a selling with a buying-back contract. Formulating the buying-back price beforehand is nothing but borrowing by pledging bonds, which plays the role of finance. The most important characteristic of RP lies in the fact that it is an amalgamated transaction of selling and borrowing. When two parties enter a transaction with repurchase agreement, therefore, it becomes decidedly necessary to lay down rules beforehand on such matters as disposal of collateral in case of default or how to deal with a change in prices of pledged bonds. Otherwise disputes among parties involved could beak out. Even if rules have been laid down, however, there may occur some unanticipated problem or other, and in that case, parties involved (or a third party) are (is) forced to judge whether RP is basically a sale-and-purchase or a borrowing-and-lending transaction. Faced with such a problem, bitter confrontation in interests will arise between parties involved, rending it impossible to solve the problem by themselves. Consequently the disputed problem will require a lawsuit. In this paper we will examine lawsuits on RP in Japan and analyze what have become crucial issues, how lawsuits have developed, and how the judgement viewed the problem. Finally, by examining the 2009 amendment of taxation system which overruled earlier judgements, we will try once again to secure a viewpoint for solving the problem.
- 2010-02-25