사모투자전문회사의 설립 및 운용과 관련된몇 가지 실무상 문제

Abstract

A private equity fund established under the Financial Investment Services and Capital Markets Act (the “Capital Markets Act”) (the “PEF”) has recently been a popular choice of investment vehicle for asset managers, as they are not required to be licensed to incorporate and manage the PEF under the Capital Markets Act. The Capital Markets Act includes detailed provisions on the management of the PEF’s property, registration of the PEF, and regulation on the activities of the managing general partner, but leaves the inner relationship of the PEF to be governed by agreements among the parties. However, uncertainties with respect to the interpretation of the relevant provisions due to the lack of established precedents has become an obstacle to the incorporation and management of the PEF. This paper explores, among others, the following three issues frequently raised in practice. Firstly, after reviewing general provisions in the Commercial Code and the Capital Markets Act regarding the rights of limited partners, this paper will endeavor to demonstrate the limits on the limited partners’ participation in the management of the PEF in light of the provisions prohibiting delegation of the business of a general managing partner. Secondly, this paper will briefly examine the provisions in the Capital Markets Act in connection with the fiduciary duty of a managing general partner and the restriction on the activities of a managing general parter and will suggest certain practical guidelines with respect to the transaction between a managing general partner and the portfolio companies, for the practitioners’ use. Lastly, this paper will describe general regulations on the PEF’s use of the two types of special purpose vehicles; namely, investment purpose companies and offshore special purpose companies (the “Offshore SPC”), and argue that the newly introduced restriction on the PEF’s investment in offshore funds materially limits the use of the Offshore SPC.