集合投資證券(受益證券)의 還買에 관한 判例理論의 評價

Abstract

This article analyzes the legal issues discussed in the court's rulings about the liability for redemption of the unit trust under the old Unit Trust Act(of 1995). The Supreme Court takes its position that the liability for redemption of the unit trust belongs to the securities brokers who sold the unit trust securities to the investors. This means that the brokers have to pay the redemption price to the investors with their own money. Considering the brokers are merely involved in distribution of units, such liability cannot be said to be the natural role of the brokers' business. The Author strongly criticizes the court's ruling on the ground that such a ruling violates the basic principle of the unit trust summarized as "high return and high risk," since such an attribution of liability for redemption means shifting the market risk intrinsic to the investment activities of the unit trust holders to the securities brokers without any reasonable consideration and ground. In addition, the Author notices that the legal issue about the liability for redemption of the unit trusts is not unique in the old Unit Trust Act. In other words, the Author explains that the same issue arises from the current law and the same solution should be sought under both 1995 law and current law. So the court's ruling that the brokers are not liable for the redemption under the current law differently from 1995 law also ought to be the target of the Author's criticism. The Author criticizes the Court's reasoning for its ruling. The Court explains that its ruling is based on the protection of investors. The Author insists that the shifting of risks mentioned above could not be justified as protection of investors. It means merely an excessive favor for investors who are the majority in number in the market To find a reasonable solution for the dispute concerning the liability for redemption of unit trust, the Author concludes the relevant provisions about redemption should be interpreted in the way that the unit trust should be redeemed only with the scheme property of a fund. As an alternative solution, the Author argues the relevant provisions should be declared to be void because of their unconstitutionality.