증권투자신탁제도에서의 책임구조 변형의 헌법적 한계

Abstract

Constitutional Limitations to Deformation on the Responsibility Structure of the Unit Trust Kim, Seung-Dae* Unit Trust is one sort of collective investment scheme where fundmanager company is responsible for the administration and management of the trust and the public investors acquire units and thereby become beneficiaries of the trust. In the unit trust systems of western countries such as the US, the UK and Japan, the sales company does not have the redemption obligation for its own account. However, in Korea, the relevant clause of the act regulating the unit trust is interpreted by the Supreme Court as admitting the responsibility of the sales company to redeem the units for its own account whenever the unitholder requests to redeem his unit. Such a deformation of unit trust scheme, which is peculiar only to Korean unit trust system, has the effect of absurdly transferring the responsibility of taking the damages of mass-redemption originally caused by the maladministration and mismanagement of the fundmanager company to the sales company. So from the viewpoint of the constitutional law, such a deformation of the responsibility structure deviating from the normal collective investment scheme, constitutes the breach of the constitutional principle of personal responsibility. Futhermore, in light of the principle of proportionality, it infringes upon the intrinsic part of right to conduct business freely and cannot be esteemed as an appropriate method to achieve the aim of the legislation. It also does not constitute the least restrictive means to the fundamental right among all valid means because it totally excludes the possibility of the cancellation of the relevant unit for the fundmanager or sales company, and has lost appropriate balance between the related interests through unilaterally favoring unitholders, hence severely deforming already balanced responsibility structure. Finally it causes the collapse of the basic principles of universal Unit Trust scheme so as to violate the constitutional principle of systemrighteousness(Systemgerechtigkeit), and does not comply with the principle of equality because there is no rational basis for the legal discrimination against the sales company of unit trust.