합자회사 형태를 취하는 사모투자전문회사의 법적 문제점
The Legal Problems and Ameliorative Plan of Private Equity Fund
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The general meaning of the term “fund” is “a reserve of money set aside for purposes of achieving particular objectives or conducting particular activities.” A fund can be defined as a pool of capital or other resources set aside for a specific purpose by multiple investors with shared interests. It is a shared investment vehicle and, as if it were a living being, it is recognized as having the ability to bring together investments on behalf of its investors. In other words, a fund is virtually synonymous with the so-called “collective investment scheme,” an indirect collective investment arrangement which pools capital investments from numerous investors. A specialized professional oversees and manages the pooled investments and distributes income profits to the investors. In Korea, both the fund concept and the Indirect Asset Management Act(IAMA)'s definition of an indirect investment scheme share almost the same meaning. “Private equity fund(PEF)” generally refers to a pool of private investments raised by investment experts from a relatively small number of investors. A private equity fund typically takes the form of a limited partnership in which a fund manager makes a substantial investment and becomes a general partner with unlimited liability. On the other hand, investors in the fund become limited partners with limited liability. Especially, the writer is concerned about several legal problems and ameliorative plans of PEF in Korea. One of the serious problems of PEF in Korea is that as a rule limited partners are highly likely to rule over the executive staffs as main investors. In addition, the situation, in which a corporation with a deep pocket in real sense can avoid its legal responsibility by making a Private Equity Firm as a subsidiary according to the exception clause of the IAMA which allows a corporation to be an unlimited partners, can be a critical weakness of the this scheme. In this regard, the writer has tried to present the viable alternatives to solve the above problems as those may not seem to be so cogent. The writer personally hopes that this thesis can be a catalyst in igniting the substantial debate on this issue in the future.
Abstract
The general meaning of the term “fund” is “a reserve of money set aside for purposes of achieving particular objectives or conducting particular activities.” A fund can be defined as a pool of capital or other resources set aside for a specific purpose by multiple investors with shared interests. It is a shared investment vehicle and, as if it were a living being, it is recognized as having the ability to bring together investments on behalf of its investors. In other words, a fund is virtually synonymous with the so-called “collective investment scheme,” an indirect collective investment arrangement which pools capital investments from numerous investors. A specialized professional oversees and manages the pooled investments and distributes income profits to the investors. In Korea, both the fund concept and the Indirect Asset Management Act(IAMA)'s definition of an indirect investment scheme share almost the same meaning. “Private equity fund(PEF)” generally refers to a pool of private investments raised by investment experts from a relatively small number of investors. A private equity fund typically takes the form of a limited partnership in which a fund manager makes a substantial investment and becomes a general partner with unlimited liability. On the other hand, investors in the fund become limited partners with limited liability. Especially, the writer is concerned about several legal problems and ameliorative plans of PEF in Korea. One of the serious problems of PEF in Korea is that as a rule limited partners are highly likely to rule over the executive staffs as main investors. In addition, the situation, in which a corporation with a deep pocket in real sense can avoid its legal responsibility by making a Private Equity Firm as a subsidiary according to the exception clause of the IAMA which allows a corporation to be an unlimited partners, can be a critical weakness of the this scheme. In this regard, the writer has tried to present the viable alternatives to solve the above problems as those may not seem to be so cogent. The writer personally hopes that this thesis can be a catalyst in igniting the substantial debate on this issue in the future.
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