대량보유보고제도상 일반투자 요건의 문제점과 개선방안

Abstract

Recently, the Enforcement Decree of the Capital Markets Act was revised, and there were several changes in the beneficial ownership reporting. First, the scope of “what affects management” was adjusted by defining exceptions. Second, the concept that purpose of general investment was added, in addition to the purpose of holding simple investment and management participation. The background and reason for the revision is in order to adjust the scope of ‘impacting management rights’ to faithfully fulfill the fiduciary duties following the introduction of the stewardship code. However, due to this amendment of making general investment requirement, investors have to bear additional reporting obligations for stewardship activities which investors have previously been able to exercise without additional burden of reporting obligations. Thus, in this paper, the problems of the revision of the Enforcement Decree were reviewed and the improvement measures were presented. The creation of general investment requirements adds to the disclosure obligation to shareholders who have no intention of participating in management. Given that courts have previously strictly interpreted the purpose of the beneficial ownership reporting system and the purpose of participation in management, this differential reporting obligation does not conform to the purpose of the beneficial ownership reporting system. In addition, it is necessary to comprehensively review whether the revision of the Enforcement Decree rationally regulates the exercise of shareholder rights, as it does not conform to the overseas legislative practices referred to in the amendment. In the case of public pension funds such as the National Pension Service, most of the companies to be invested will be monitored according to the purpose of the stewardship code and shareholder rights will be exercised accordingly. However, the establishment of the general investment requirement has increased the overall disclosure burden compared to the previous one, inevitably exposes the operational strategy, and there is a growing concern that the active exercise of shareholder rights will be hesitant. In addition, the listing of exceptions to “what affects management” may cause restriction of stewardship activities. The article defining management particiapation as “de facto affects management”, so it may be misunderstood as all of stewardship activities excluding listed exceptions seems affect management. It is necessary to clarify the scope of “what affects management rights” and to change the regulation that does not regard the exercise of other shareholder rights as management participation. The Capital Market Act eases reporting obligations compared to ordinary investors by placing special cases for public pension funds and professional investors. However, it is needed to prevent unreasonable discremination. In order to facilitate the exercise of shareholder rights, reasonable reporting obligations should be relaxed through legislation that has undergone an economic analysis of investors’ investment methods and investment status. A critical review is required as to whether the revision of the Enforcement Decree of the Capital Market Act was in line with the original revision purpose, that is, to support the expansion of stewardship activities of institutional investors.