사모투자전문회사의 지분 개념에 대한 법적 고찰 －지분 양수도와 사원의 도산시 처리를 중심으로－

Abstract

Private equity fund ("PEF") under the Financial Investment Services and Capital Markets Act ("FSCMA") is the company in the form of limited partnership(In Korean, hapjahoysa) under the Commercial Act. Neither the current provisions with respect to PEF under the FSCMA, nor the Commercial Act are sufficient to regulate the partnership interest of PEF. Furthermore, it is hard to find the articles about the partnership interest of PEF. However, in line with the increase of the PEF, it is expected that the number of the transactions related to the partnership interest of PEF will subsequently increase. In this article, on the assumption that the legal nature of the partnership interest of PEF is the status of partner, the partnership interest of PEF is divided into the "Commitment Interest", "Utilized Commitment Interest", and the "Unutilized Commitment Interest." In addition, the Utilized Commitment Interest may be varied by the purpose of capital call in accordance with the partnership agreement, and the Unutilized Commitment Interest can be differed by whether there was a capital call or not. Based on this analysis, this article look through the issues in respect of the transfer of various kinds of Interests. Also, this article argues that the same entity is able to have the partnership interest of the general partner and that of the limited partnership simultaneously due to the different kinds of each of its legal nature. Besides, current FSCMA cannot afford the partnership interest of the general partner and unutilized commitment interest of the limited partner into the concept of the 'Securities'. It only includes the utilized commitment interest of the limited partner. Therefore, this article researched whether there are any necessities to adopt the separate concept of the transferable partnership interest under the FSCMA. Based on the previous analysis, this article examined the diverse legal issues on the verge of the bankruptcy of the partner. First, in case of the limited partner's bankruptcy, the creditors of the PEF should be entitled to participate the bankruptcy procedure of such limited partner in so far such limited partner has any unutilized commitment interest. Unless otherwise the partnership agreement sets out, the rationale of the executory contract under the Debtors Rehabilitation and Bankruptcy Act (the "DRBA") could be applied to the general partner's partnership interest in its entirety, on the other hand the same will be applied to the limited partner with respect only to the Unutilized Commitment Interest. Moreover, this article discusses about the effectiveness of the ipso facto clause under the partnership agreement. Finally, this article opines that neither the provision of the committed equity, nor the set-off between the obligation of dividend distribution and the right of capital call is subject to the avoidance under DRBA.