헤지펀드(Hedge Funds)의 규제에 관한 비교법적 고찰
A Study on Regulations of Hedge Funds in the Comparative Law
0
조회
0
다운로드
4
인용
0
참고문헌
키워드
초록
Hedge Fund can be defined as follows: "A pool of assets which is raised by private placement to invest in securities, derivative, futures or any other financial instrument and uses the leverage and the short-selling as it’s major investment strategy for the purpose of hedging the risk" In USA, Hedge Fund manipulated the requirement needed by grouping their clients under fifteen or selecting only certain investor, pooling through private placement. So In 2004, SEC amended Rule 203(b)(3)-1, 2 under the Investment Adviser Act to require that all Investment Advisers must count each individual owner or shareholder of private equity funds as a investor in respect to the term "client" in the Investment Adviser Act. However in 2006, the D.C. Circuit held that Hedge Fund Rule’s interpretation of the word "client" was outside of it’s authority and inconsistent with Congress’s intent(Goldstein v. SEC). As a result of Goldstein, it is more important to make legislative efforts for regulating Hedge Funds as H.R. 5712(19th Congress 2nd Session), 2006 and S. 1402(110TH Congress 1st Session), 2007. In 2007, SEC adopted a new Rule 206(4)-8(so called "Anti-fraud Rule") under the Investment Adviser Act to protect investors in pooled investment vehicles from fraudulent, deceptive, manipulative act, practice made by the investment adviser. In Europe FSA released a report entitled "Hedge Funds; A Discussion of Risk and Regulatory Engagement" in 2005. In 2007, UK-based Hedge Fund Managers formed a group (Hedge Fund Working Group) to establish a set of best practice standards (HFWGS) as a self-regulation. The Final Report of HFWGS was published in 2008. Before the enactment of "German Investment Modernizing Act"in 2004, the legal framework for Hedge Funds in German was the "Investment Companies Act" (Kapitalanlagegesellschtgesetz KAGG) and the "Foreign Investment Act" (Auslandinvestmentgesetz AuslInvestmG). In 2004, German legislator acted "German Investment Modernization Act" (Gesetz zur Modernisierung des Investmentwesens und zur Besteuerung von Investmentvermögen; InvmG) which replaced the KAGG and the AuslInvestmG to implement UCITS Ⅲ regime into German. The German Investment Act contains regulations both for the "Single Hedge Fund" and for the "Fund of Hedge Funs" (FoHFs).
Abstract
Hedge Fund can be defined as follows: "A pool of assets which is raised by private placement to invest in securities, derivative, futures or any other financial instrument and uses the leverage and the short-selling as it’s major investment strategy for the purpose of hedging the risk" In USA, Hedge Fund manipulated the requirement needed by grouping their clients under fifteen or selecting only certain investor, pooling through private placement. So In 2004, SEC amended Rule 203(b)(3)-1, 2 under the Investment Adviser Act to require that all Investment Advisers must count each individual owner or shareholder of private equity funds as a investor in respect to the term "client" in the Investment Adviser Act. However in 2006, the D.C. Circuit held that Hedge Fund Rule’s interpretation of the word "client" was outside of it’s authority and inconsistent with Congress’s intent(Goldstein v. SEC). As a result of Goldstein, it is more important to make legislative efforts for regulating Hedge Funds as H.R. 5712(19th Congress 2nd Session), 2006 and S. 1402(110TH Congress 1st Session), 2007. In 2007, SEC adopted a new Rule 206(4)-8(so called "Anti-fraud Rule") under the Investment Adviser Act to protect investors in pooled investment vehicles from fraudulent, deceptive, manipulative act, practice made by the investment adviser. In Europe FSA released a report entitled "Hedge Funds; A Discussion of Risk and Regulatory Engagement" in 2005. In 2007, UK-based Hedge Fund Managers formed a group (Hedge Fund Working Group) to establish a set of best practice standards (HFWGS) as a self-regulation. The Final Report of HFWGS was published in 2008. Before the enactment of "German Investment Modernizing Act"in 2004, the legal framework for Hedge Funds in German was the "Investment Companies Act" (Kapitalanlagegesellschtgesetz KAGG) and the "Foreign Investment Act" (Auslandinvestmentgesetz AuslInvestmG). In 2004, German legislator acted "German Investment Modernization Act" (Gesetz zur Modernisierung des Investmentwesens und zur Besteuerung von Investmentvermögen; InvmG) which replaced the KAGG and the AuslInvestmG to implement UCITS Ⅲ regime into German. The German Investment Act contains regulations both for the "Single Hedge Fund" and for the "Fund of Hedge Funs" (FoHFs).
참고문헌 (37)
- 원동욱, "미국 헤지펀드의 투자전략 확대 및 규제정책 방향에 대한 고찰", 경영법률, 19(3), pp.239~275 (2009), 한국경영법률학회
- 유주선, "독일 투자법에 관한 고찰", 상사판례연구, 21(3), pp.251~279 (2008), 한국상사판례학회
- 유주선, "자본시장법상 헤지펀드 - 독일 투자법을 중심으로-", 증권법연구, 10(1), pp.155~185 (2009), 한국증권법학회
- 한정미, "헤지펀드 도입을 위한 금융투자관련 법제 정비방안 연구", 한국법제연구원, ~ (2008)
- 이승훈, "헤지펀드의 국내 허용과 프라임 브로커리지", 월간 하나금융 (2008)
- 최민용, "헤지펀드의 도입과 규제에 관한 고찰", 상사판례연구, 20(3), pp.825~861 (2007), 한국상사판례학회
- 김화진, "기업 경영권 시장과 헤지펀드", 서울대학교 법학, 48(1), pp.236~279 (2007), 법학연구소
- 노희진, "헤지펀드의 국내 허용 방안" (2008), 한국증권연구원
- 송종준, "미국의 헤지펀드 규제와 법적 시사점", 증권법연구, 7(1), pp.49~99 (2006), 한국증권법학회
- "米國金融規制改革案の槪要", 商事法務, ~ (2009)
- "ドイツにおけるヘツヅフアンド法制の整備", 商事法務, ~ (2003)
- "ドイツ投資法の改正の動き", 商事法務, ~ (2007)
- "EUにおけるヘツヅフアンド規制の動き", 商事法務, ~ (2009)
- Iain Cullen, "FUNDS: LAW AND REGULATION" (2001), Sweet & Maxwell Ltd
- U.S. REGULATION OF HEDGE FUNDS, "Shartsis Friese LLP", ~ (2005)
- Paul M. Jonna, "In Search of Market Discipline: The Case for Indirect Hedge Fund Regulation", San Diego L. Rev, 45, pp.899~ (2008)
- Douglas Cumming, "Hedge Fund Strategies and Regulation", Banking & Fin. Services Pol’y Rep, 27(7), pp.1~ (2008)
- Linda C. Thomsen, "Hedge Funds: An Enforcement Perspective", Rutgers L. J., 39, pp.541~ (2008)
- Todd Zaum, "SEC", J. Bus. Entrepreneurship & L, 1, pp.111~ (2007)
- Carl J. Nelson, "Hedge Fund Regulation: A Proposal to Maintain Hedge Funds Effectiveness without SEC Regulation", Brook. J. Corp. Fin. & Com. L, 2, pp.221~ (2007)
- Lartease Tiffith, "Hedge Funds Regulation: What the FSA is Doing Right and Why the SEC should follow the FSA's Lead", NWJILB, 27, pp.497~ (2007)
- Thomas C. Pearson, "Protecting Global Financal Market Stability and Integrity: Strengthening SEC Regulation of Hedge Funds", N. C. J. Int'l L. & Com. Reg, 33, pp.1~ (2007)
- Sean M. Donahue, "Hedge Fund Regulation: The Amended Investment Adviser Act does not protect Investors from the Problems created by Hedge Funds", Clev. St. L. Rev, 55, pp.235~ (2007)
- IOSCO, "Principles for the Valuation of Hedge Funds Portfolios", ~ (2007)
- European Commission, "Consultation on Hedge Funds", ~ (2008)
- HFSB, "Hedge Fund Working Group Standard: Final Report", ~ (2008)
- FSA, "Feedback on CP 07", 6, 2008
- FSA, "Consultation Paper 07", 6, 2007
- FSA, "Feedback on DP 05", 4, Hedge Funds, 2006
- FSA, "Discussion Paper 05", 4, Hedge Funds: Hedge Funds; A Discussion of Risk and Regulatory Engagement, 2005
- FSA, "Discussion Paper 16", Hedge Funds and FSA, ~ (2020)
- Christoph Kumpan, "Börsenmacht Hedge Fonds-Die Regulierung in den USA und möglicheImplikationen für Deutschland" (2006), ZHR
- G. Spindler, "Die Regulierung von Hedge-Fonds im Kapitalmarkt und Gesellschaftsrecht" (2006), WM
- Frank Herring, "Die Umsetzung der Finanzsicherheiten- Richtlinie und ihre Folgen fürKapitalanlagegesellschaften, deutsche Single Hedgefonds und PrimeBroker" (2004), ZIP
- Hilger Livonius, "Investmentrechtliche Rahmenbedingungen für Hedgefonds in Deutschland" (2004), WM
- Hanno Berger, "Regulierung von Hedgefonds in Deuschland" (2003), ZBB
- Claus Lutterman, "Rechtverhältnisse bei Hedge-Fonds in Deutschland und in denUSA" (2002), ZIP