독일에서의 투자주식회사(InvAG) 규제에 관한 고찰 - 회사법적 접근을 중심으로 -

Abstract

Before the enactment of "German Investment Modernizing Act" in 2004, the legal framework for Investment Company(Investmentaktien- gesellschaft) in German was the "Investment Companies Act" (Kapitalanlagegesellschtgesetz, KAGG) and the "Foreign Investment Act" (Auslandinvestmentgesetz AuslInvestmG). In 2004, German legislator enacted "German Investment Modernization Act"(Gesetz zur Modernisierung des Investmentwesens und zur Besteuerung von Investmentvermögen; InvmG) which replaced the KAGG and the AuslInvestmG and implement UCITS Ⅲ regime into German. The German Investment Act is composed of these Chapters; General Regulations, Asset as Funds, Investment Stock Corporation, Funds with additional Risks, Penal provision. The additional amendment to the Act became effective on 28 December 2007. They are designed to modernise the Act significantly as follows: deregulation, excluding so called close-end funds, further harmonisation with EU Directive, improving the governance of Investment Company. The Act provides the Investment Company as "pools of assets for the collective investment of the capital which are invested in assets within the meaning of this Act in accordance with the principle of risk diversification in the corporate form". And the assets of investment funds(including Investment Company) must be kept by an independent custodian bank, which is a credit institute licensed for the deposit and operates independently other function solely for the interest of investor. Investment Company may issue and redeem its shares at any time with the limits of a minimum capital and a maximum capital which set out in its articles of association. However in German, Investment Company may only be operated in the legal form of stock corporation and the shares of it consist of company share (Unternehmenaktien)and investment share(Anlageaktien). Investment Company shall be subject to the German Corporation Act(AktG) and Commercial Act(HGB) with some exceptions.