자본시장법상 투자계약증권에 관한 소고 - 부동산개발사업 간접투자에의 투자계약증권 규제 적용 가능성 및 타당성 연구 -

Abstract

Since IMF(International Monetary Fund) currency crisis, indirect real estate investment market, which was introduced as an alternative to direct real state investment, has seen its rapid growth due to the instability of international financial market and real estate's entering a state of depression. After that, the indirect real estate investment which has been regulated by the 「Real Estate Investment Company Act」, 「Indirect Investment Trust Asset Management Business Act」, and 「Trust Act」 was integrated and began to be regulated partly by 「Capital Market and Financial Investment Business Act」 which included comprehensive regulations. These laws are known to have their bases of regulating new types of indirect investment products as well as traditional securities on the concepts of investment contract security under the 「Securities Act of 1933」 of the United States. Recently, there has been a new trend of trying to avoid the restrictions of financial investment in the capital market by either not using the established ways of indirect investment or creating new kinds of business structures. The current laws of capital market have legal provisions that can subsume new types of indirect investment which have been out of established restrictions as investment contract security and regulate them, but examples of their actual application are rarely found on account of the absence of the clear definition of investment contract security. For this reason, it is urgently necessary to examine whether this profitable real estate investment should be subsumed into investment contract security and can be subject to diverse regulatory acts in order to ensure the safety of transaction and protect good traders. In particular, with respect to profitable real estate investment's application to investment contact security, we need to establish clear criteria of distinguishing it from existing indirect investments and fund-raising business conducted without permission and look for which restrictions can be applied to it. Also necessary is the removal of hermeneutic confusion related to the terms.