투자일임업과 관련한 몇 가지 법적 쟁점

Abstract

Since discretionary investment business was introduced into Korea in 1997, discretionary investment business has been growing rapidly. Total discretionary investment property was up to KRW 27 trillion as of 30 June 2010. Especially total size of discretionary investment property as of 2010 jumped to double from 2009. Recent rapid growth of this business is due to introduction of “Advisory Outsourcing Wrap Account”, through which discretionary investment business entities can manage the consulting of discretionary investment property with Outside Investment Advisors. High yield of profit in several Advisory Outsourcing Wrap Accounts attracted many investors' attention. So money moves from funds into wrap account. Since Financial Supervisory Committee(FSC) adopted “Collective Order”, by which discretionary investment entities can make sell or buy order collectively from many wrap accounts and allocate them to each wrap accounts in 2007, it is possible to manage wrap accounts under Collective Investment Scheme(CIS) despite there are many regulatory differences between discretionary investment business and CIS. So FSC amended 『Regulations on Financial Investment Business』(“RFIB”) in September 2010 by stipulating more detailed standards of distinguishing discretionary investment business from CIS in order to reinforce individualized treatments of discretionary investment business. The methods of FSC approaching the differentiation between discretionary investment business and CIS are reasonable in whole, but there are still several issues, especially similarity in treatment of portfolios as not equipped requisite of discretionary investment business. On the other hand, in regard to Advisory Outsourcing Wrap Account, several legal issues are accompanied; regulatory point of view, practically it is very difficult to classify Advisory Outsourcing Wrap Account with “Management Outsourcing Wrap Account”, in which independent investment advisory is made solely for management and separately from discretionary investment business entity. Therefore in practice many Advisory Outsourcing Wrap Accounts are managed like Management Outsourcing Wrap Account, which is unsound business under the Financial Investment Services and Capital Markets Act(FISCMA). Finally I suggest to expand the range of discretionary investment property to the real estates and the rights linked real estates, same as the former Indirect Investment Asset Management Act, in order for many investors to have opportunities of receiving total asset management services for investment to financial investment instrument as well as real estate products.