외국집합투자증권의 국내 판매와 관련한 국제금융법의 쟁점 - 자본시장법상 진입규제 면제조항의 적용을 중심으로 -

Abstract

Determining the scope of application of domestic law in international financial transactions is an important issue. The Financial Investment Services and Capital Markets Act of Korea (the “Capital Markets Act”) explicitly sets out the principles of extraterritorial application, along with certain safe harbor provisions in relation to entry regulations. In the context of the above, domestic investors’ investment in offshore fund is one of the areas of the international financial transactions where the application of domestic capital markets regulation matters. In order to protect domestic market and investors, the Capital Markets Act specifically requires offshore funds to register with the Financial Services Commission before they commence marketing in Korea. The Capital Markets Act also imposes certain regulations with respect to sales, disclosures and business conduct of the asset managers of such offshore funds, along with certain supervision and inspection rights of the financial supervisory authorities. With the above background in mind, this article explores issues involving application of the above-mentioned safe harbor provisions to offshore fund regulation. In particular, this article argues that safe harbor provisions cannot be utilized to exempt offshore fund registration, because such provisions are specifically devised to exempt foreign broker/dealers that operate on a reverse inquiry basis. As an alternative, this article suggests that more specific conditions for exemption from offshore fund registration, which could improve predictability through relevant laws and regulations or authoritative interpretation, be provided. This article concludes by pointing out that, on a more fundamental level, it is necessary to review approaches taken by other countries with respect to regulation of offshore fund investment so as to ensure harmonization of each country’s capital market regulation.