투자신탁자산의 운용상 주의의무와 투자고객 보호방안

Abstract

The high risk and high return characteristics of commercial investment trust products have shown possibility to impose inscrutable losses to investors who have invested in specialized investment trust firms and have belief in their investment management techniques. In order to regulate this problem Korea has established and made effective relevant laws, but the actual situation with regulation in relation to funds management by fund management bodies etc. is still inadequate. Especially, the duty of care provision in relation to investment trust related asset managers is in a subjective state, and even with regards to the investment diversification duty, a basic principle in modern investment techniques, there is no unified provision. In this study an inquiry was made as to which legal duties are practiced on behalf of investors in relation to asset management by investment asset management firms.In a trust relationship because absolute discretionary right is given to the trustee, the risk of authority misuse by the trustee becomes accordingly high. Therefore, there is a need to establish a higher duty of care standards for trustees than in the laws relating to general agency etc. Especially, in an indirect investment trust relationship because the authority of the trustee in relation to investment and asset management in speculative products are wholly acknowledged as legitimate, not only the subjective duty of prudence care but also the high duty of care in accordance with investment theory must be taken responsibility for. Accordingly, asset management firms that have secured investment funds must be made responsible in asset management for fiduciary duty, which is a principle in trust laws, and in addition must recognize the prudent investor rule including the investment diversification duty towards them.