헤지펀드(Hedge Funds)의 규제에 관한 비교법적 고찰

Hedge Fund can be defined as follows: "A pool of assets which is raised by private placement to invest in securities, derivative, futures or any other financial instrument and uses the leverage and the short-selling as it’s major investment strategy for the purpose of hedging the risk" In USA, Hedge Fund manipulated the requirement needed by grouping their clients under fifteen or selecting only certain investor, pooling through private placement. So In 2004, SEC amended Rule 203(b)(3)-1, 2 under the Investment Adviser Act to require that all Investment Advisers must count each individual owner or shareholder of private equity funds as a investor in respect to the term "client" in the Investment Adviser Act. However in 2006, the D.C. Circuit held that Hedge Fund Rule’s interpretation of the word "client" was outside of it’s authority and inconsistent with Congress’s intent(Goldstein v. SEC). As a result of Goldstein, it is more important to make legislative efforts for regulating Hedge Funds as H.R. 5712(19th Congress 2nd Session), 2006 and S. 1402(110TH Congress 1st Session), 2007. In 2007, SEC adopted a new Rule 206(4)-8(so called "Anti-fraud Rule") under the Investment Adviser Act to protect investors in pooled investment vehicles from fraudulent, deceptive, manipulative act, practice made by the investment adviser. In Europe FSA released a report entitled "Hedge Funds; A Discussion of Risk and Regulatory Engagement" in 2005. In 2007, UK-based Hedge Fund Managers formed a group (Hedge Fund Working Group) to establish a set of best practice standards (HFWGS) as a self-regulation. The Final Report of HFWGS was published in 2008. Before the enactment of "German Investment Modernizing Act"in 2004, the legal framework for Hedge Funds in German was the "Investment Companies Act" (Kapitalanlagegesellschtgesetz KAGG) and the "Foreign Investment Act" (Auslandinvestmentgesetz AuslInvestmG). In 2004, German legislator acted "German Investment Modernization Act" (Gesetz zur Modernisierung des Investmentwesens und zur Besteuerung von Investmentvermögen; InvmG) which replaced the KAGG and the AuslInvestmG to implement UCITS Ⅲ regime into German. The German Investment Act contains regulations both for the "Single Hedge Fund" and for the "Fund of Hedge Funs" (FoHFs).