사모펀드 업무집행사원의 부당권유(이익보장) 금지에 관한 연구 - 대법원 2017.12.13. 선고 2017두31767 판결 평석을 중심으로 -

Abstract

As the capital market is getting developed, the number of investors participating in the market comes to increase and the investing methods or instruments in which the investors participate are being much diversified. The investors’ common purpose is pursuing some stable income at any rate, even though each individual investor may have particularly different goals in detail. The financial investment business companies always endeavor to develop new investment techniques or strategies in order to increase investment earnings rate for their own investing client. On the other hand, Capital Market and Financial Service Business Act(“CMFSBA”) minutely stipulates several kinds of regulations on financial investment business activities lest the financial investment business companies commit the offenses in relation to the principal loss risk which is the core conceptual component of financial investment instruments. The subjects of this paper is related with the prohibition of unfair solicitation through promising profit guarantees committed by the General Partner of the private collective investment vehicles only for the institutional investors(CMFSBA §249-14 (1) 1.). In this paper, the supreme court decision(2017두31767) which was made in 2017 is analysed and estimated as a meaningful judicial precedent and some implications on this issue can be provided. In this case, the supreme court said that CMFSBA §249-14 (6) 2 prescribes that the subjet of promising profit guarantee and unfair solicitation who can be the object of legal regulation is General Partners, however, if a General Partner is deeply involved in a third person’s profit guarantee promise, the General Partner also can be regarded as the subject of profit guarantee and unfair solicitation even though the third person actually promise the investors’ profit guarantee to them. This decision means that a GP who is practically regarded as a substantial subject of promising profit guarantee can be included in the category of legal regulation even though the GP doesn’t promise profit quarantee directly to investors. It is highly estimated in the point that the supreme court made a flexible legal translation in order to cover a loophole in the law. The Financial Supervisory Service of Korea also flexibly translated the letter and spirit of CMFSBA related with the unfair solicitation on a case-by-case(ref. to the case of ☆☆☆☆☆☆private investment company and of ◆◆◆◆◆◆private investment company). As the issue related with promising profit guarantee may be consistently raised in any scope of financial investment, the financial supervisory authorities keep in mind the stance of the supreme court when they make a legal translation or application on the related legal provisions.