간접투자에 대한 규제의 통일성 확보방안

Abstract

Recently, some investment funds laws, which had regulated various financial institutes on the basis of separated financial sectors, were consolidated in ꡒthe law of collectve investment schemesꡓ under the idea of functional regulation. The objects of consolidated regulation are the securites investments trusts, securities investment companies, monetary trusts of banks, variable insurance in insurance sectors, and wrap accounts. But the law involves various problems from the view of unifiable idea of global financial legal system in Korea. Above all, the law is estimated as a half success because the sector of Real Estate Investment Trusts is exempted from application area without any rational reasons, but because of conflict of interests between the relating governmental ministries. The second problem exists in regulation of investments fund with non-public offering. Although the legislator intended exemption from any regulation over the private investment funds, the law still contains the regulative provisons and moreover founded a new system of private equity fund whose purpose consist in the acquiring the equity of another companies. Its regulating provisions consist of definition of legal form of company, restriction of fund operation, and some qualification of a general partner, etc. But this kind of ideas counter to fundamental spirit of global legal system, private autonomy. Thirdly, the newly adopted governance system, namely the institution of corporation directors and supervisory directors within the investment companies may be described as ꡐsnake legsꡑ and lead to some conflicts to the general principles in our whole legal system. Finally in addition, the new law is confronted with some tasks such as imposing the duty of positive exercising the voting rights on collective investment schemes, and establishing the precise provisions of delict liabilities.