투자펀드규제와 그 필요성 - 미국의 사례와 그 시사점을 중심으로

Abstract

[Abstract] Regulations of Investment Fund - Investment Fund Regulation of the US and its implications Investment fund is a collective investment scheme which includes hedge fund, registered investment companies, mutual fund, private equity fund, venture capital fund, or commodity pools. The regulation for such funds is recently under review all over the world. Korea is not an exception. The laws and rules that govern the securities industry and capital market derive from a straightforward concept: all investors, whether large institutions or private individuals, should have access to certain basic facts about an investment prior to buying it, and so long as they hold it. To achieve this, each country requires public companies to disclose meaningful financial and other information to the public with some exceptions. One of exceptions has been unregistered investment funds. In the case of the United States, 3 major laws govern securities industry and capital market. First, the Securities Act of 1933 requires that investors receive financial and other significant information concerning securities being offered for public sale and prohibits deceit, misrepresentations, and other fraud in the sale of securities. In general, securities sold in the U.S. must be registered. Not all offerings of securities must be registered with the SEC. Second, the Investment Company Act of 1940 regulates the organization of companies, including mutual funds, that engage primarily in investing, reinvesting, and trading in securities, and whose own securities are offered to the investing public. The Act requires these companies to disclose their financial condition and investment policies to investors when stock is initially sold and, subsequently, on a regular basis. The focus of this Act is on disclosure to the investing public of information about the fund and its investment objectives, as well as on investment company structure and operations. Lastly, the Investment Advisers Act of 1940 regulates investment advisers. With certain exceptions, this Act requires that firms or sole practitioners compensated for advising others about securities investments must register with the SEC and conform to regulations designed to protect investors. Since the Act was amended in 1996, generally only advisers who have at least $25 million of assets under management or advise a registered investment company must register with the SEC. Through the recent case of the Philip Goldstein, etal. v. SEC (D.C. Cir. 2006), it seems that the SEC's endeavors for building up a wide and strong investment fund regulations encounter an obstacle. However, the SEC keep working closely with many other institutions, including Congress, other federal departments and agencies, the self-regulatory organizations (e.g. the stock exchanges), state securities regulators, and various private sector organizations in order to regulate investment funds. While Korea has recently adopted the Financial Investment Services And Capital Markets Act for the sound regulations of securities industry and capital market, it still needs to further regulate investment funds, especially hedge fund. In addition, Korea's regulations for investment fund are scattered in several laws which make efficient regulation difficult. These complicated investment fund regulations should be reviewed for better and simple understanding and regulation of investment fund.