투자신탁의 법적 성질과 당사자들의 지위

Abstract

This article deals with the legal nature of the investment trusts and the status of the parties involved. It distinguishes the definition of the investment trusts used in the Indirectly-Invested-Asset Management Businesses Act and that used in ordinary sense, and analyzes the legal nature of the investment trusts in the latter sense. The paper explains and explores the main four views on the nature of the investments trusts. Firstly, the paper deals with the trusts theory, and rejects the view on the ground that the theory is not consistent with statutory provisions in the Act. Secondly, the paper investigates the validity of the dual trusts theory, and also rejects the view on the ground that the theory does not fit into the traditional trust theory. Thirdly, quasi-trusts theory is looked at, and discarded on the ground that Korean mandate theory need not such theory. Finally, the associative contract theory is explored and defended on the ground that it smoothly fits into the investment trust practices. Then, the paper deals with the legal status of the manager and the trustee in investment trusts schemes. The paper argues that the manager takes the position of a mandatee and the custodian is to be treated as a trustee in the trust law sense. Then the paper moves to deal with the some cases where the legal nature of the investment trusts and the status of the parties really matter. In particular, it deals with the block trading situation and the necessity of large scale transactions for OTC derivatives. The paper explains the new reformative provisions in the Act, and the recent the Korean Supreme Court decision on the matter. The paper criticizes the ruling of the Supreme Court on the ground of the new provisions. Finally the paper offers alternative solutions to the ruling.