자본시장통합법상 펀드 증권신고서제도에 대한 소고

Abstract

The existing regulatory regime relating to fund securities offering, contrary to general securities offering regulation under Securities Exchange Act, has been operated depending on prospectus delivery and explanation thereof. The regulatory regime relating to fund securities offering under the Capital Market and Financial Investment Services Act (　CISMA　), on the other hand, is quite different from current regulatory regime regarding fund securities offering. In other words, fund securities offering under the CISMA is subject to registration requirement which has been applicable to general securities offering, and also subject to investment solicitation requirements such as suitability and product guidance rule. It could be summarised as follows: First, fund registration requirement will be applied to every types of fund regardless of its legal form. For example, even trust type fund is also subject to registration requirement under the CISMA. Second, fund securities offering will be subject to registration requirement in case an issuer(fund) intends to offer or sale its securities to the general public. Third, prospectus delivery and explanation requirement under current regime will be sustained, but on a different basis. The prospectus delivery requirement will be applicable only to non-professional investors, and product guidance rule will be additionally and separately applicable to fund securities offering on a same basis as other financial investment products like securities and derivatives. There is little doubt that the regulatory change relating to fund public offering under the CISMA should be strongly supported in that it is in line with mandated disclosure philosophy and functional based regulation. Under the mandated disclosure regime, the general public could be more strongly protected by way of shift the burden of proof, presumption of damages, the expansion of potential defendants in case where the registration statement (including prospectus) contains false or misleading information with regard to material information which affects investors　 decision significantly. The fund securities offering regulation under CISMA, however, should be reviewed thoroughly and supplemented accordingly because it has some regulatory loopholes or regulatory gaps. For instance, it should be arguable whether it is necessary to treat closed fund differently from open end fund in terms of fund securities offering regulation, and it is also unclear whether the prospectus should be updated on a timely basis according as the registration statement is updated. Additionally, it is uncertain if solicitation regulation should be applicable even in case where fund securities offering regulation is applied, and the definition of the issuer is inconsistent and differently applicable according to the legal form of the fund.