사모 시장의 육성과 투자자 보호 ―미국, 일본 제도의 시사점―

Abstract

Due to events such as large-scale losses related to a series of private funds such as derivative-linked funds (DLF) and the Lime fund, the issue of investor protection for private funds emerged. As a result, the Financial Investment Services and Capital Markets Act and its enforcement decrees were amended. In the current phase of a low-growth, low-interest rates, and aging society, the capital market has to take on serious tasks such as investing in venture capital for innovative growth and improving the return on household financial assets. However, these become possible only when the capital market can provide reliable profitability based on trust. Developed countries such as the United States are promoting effective performance in the capital market by cultivating a sound private placement market, discovering various investment opportunities at the right time, and improving the capital raising system such as angel investment. In other words, while the private placement system operates flexibly, the broker-dealer who is the investment adviser is required to strictly comply with regulations on business conduct rules such as the suitability rule in order to resolve information asymmetry. This is because the resolution of information asymmetry becomes the basis for realizing the principle of self-responsibility. In the United States, the suitability rule is fundamental to fair dealing and is intended to promote ethical sales practices and high standards of professional conduct. Therefore, the application of the suitability rule (FINRA Rule 2111) is not unconditionally excluded, even for institutional investors, unlike Korea. Rule 2111(b) provides an exemption to customer-specific suitability regarding institutional investors if the conditions delineated in that paragraph are satisfied. In other words, in the United States, broker-dealers must judge whether institutional investors can self-evaluate their investment recommendations and make investment decisions independently in order to effectively comply with the suitability rule. Although the Capital Market Act and Enforcement Decree have been revised several times, it is questionable whether the improvement has been made in a way that can enhance trust in private placement system. The essence of investor protection is transparent and faithful disclosure of information. Like the US system, the autonomy of the private placement system should be further expanded, but improvements of business conduct rules should be considered from the ground up so as to further achieve effective investor protection.