자본시장법상 집합투자기구 운영체계의 재검토

Abstract

To eliminate loopholes in the regulatory system and expand the coverage of investor protection Capital Market Act(CMA) has diversified the legal form of existing collective investment scheme(CIS) that had been restricted in investment trust and investment company. This change in the CIS is very desirable in that the Act provides investors with attractive investment products that hold diverse structure caused by broad autonomy of investors. However, the Act has not satisfied expectations of the collective investment market yet. Most of all, the reorganization of regulatory structure for the CIS is urgently being called for. The aim of the CMA is not to establish new investment vehicles but to approve existing investment vehicles as the CIS. Thus, the CIS should be defined comprehensively to embrace diverse investment vehicles such as the examples shown in UK, US and Japan. In introducing a new type of the CIS we need to consider small scale of the vehicles or the nature of personal company and partnership in which the investor protection system is insufficient. In practice, a new type of CIS cannot help establishing and operating in private funds. Therefore, the provisions of the new type of CIS should be revised in coincide with this feature. Also the regulation on equity securities need to be redefined. It is desirable that the equity in the CIS is directly defined as a securities because it qualifies all elements of securities. The introducing of equity securities unpermitted in Commercial Law and Civil Law is unnecessary. And the current provisions on the CMA stipulating the certificated equity securities could be abolished. It’s not certain whether the new type of the CIS could be established and operated well under the current CMA or not. Moreover, The aims of the Act to vitalize collective investment and reinforce investor protection could be more difficult to be achieved. We hope that the legal environment will be improved as soon as possible.