신탁형 집합투자기구의 법률관계와 당사자들의 법적 지위에 관한 고찰 -투자자 보호의무를 중시하는 판례의 태도를 중심으로

Abstract

Even though collective investment trusts under the Financial Investment Services and Capital Markets Act(‘FSCMA’) stemmed from the legal relations on the trusts in private law, the issuance and operation of beneficiary certificates thereof are separated from the sales process, bringing about the urgent necessity for establishing articulate and practical legal frameworks, through a systematic and logical analysis, with regard to the complicated and thus controversial legal status and relationships of interested parties, i.e., collective investment entity, trust business entity, and distribution company. From the Securities Investment Trust Business Act and the Indirect Investment Asset Management Business Act to the FSCMA, changes in relevant legislations and terms and conditions have been leading a wide spectrum of academic discussions with diverse theories. Catching up with these academic progress, the Supreme Court of Korea has accumulated diverse legal principles and underlying mechanism for the collective investment scheme in accordance with regulations and terms. Considering meaningful precedents for subject matters and existing discussions, this article seeks to examine and make recommendations on more desirable and significant legal relation between the parties involved making up the collective investment trust, with respect to the nature and function of investment trust. In particular, in terms of the duty of good faith and the obligation of investor protection, there exists a need to understand the legal position and relationship between collective investment entity and distribution companies. The study comes to the conclusion as below. First of all, collective investment trusts should be based on the combined trust system, which not only consists of collective investment entities and trust business entities but between collective investment entity and investors especially considering the significance and influence of investor protection. Secondly, the legal status of distribution company is not necessarily the same as the conventional commission agent under the Commercial Act, because of fundamental differences between two concepts and functions and unnecessariness of borrowing the concept. Finally, there are still room for development of study on establishing a clearer and striking legal framework of the collective investment scheme to illustrate the relationship between collective investment entity and investors with fiduciary relationship theory.