독일에서의 헤지펀드규제 동향과 시사점

There is no statutory definition about what means Hedge Fund. However, generally speaking, it is 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" 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 is composed of these Chapters; General Regulations, Funds, Investment Stock Corporation, Funds with additional Risks (Hedge Funds), Penal provision. It is remarkable to provide Hedge Funds expressly in Statue. In German Investment Act, Hedge Fund is called as "funds with additional risk" because investment policy must include leverage and (or) short-selling. So there are no restrictions placed on the Hedge Fund’s investment strategies. However the units of Hedge Fund may not be offered to the public but on the private placement basis only. The German Investment Act contains regulations both for the "Single Hedge Fund" and for the "Fund of Hedge Funs" (FoHFs). For latter one the German Investment Act provides more strict regulations to protect investors because FoHFs’s units may be offered to the public. As a result of being regulated as an investment fund, German Hedge Fund has to meet all general requirements needed in the German Investment Act as a investment fund except otherwise provided. For example Hedge Fund must be managed by either an Investment Management Company (in the case of Unit Investment Trusts) or an Investment Stock Corporation (mutual funds in USA). Also the assets of investment funds(including Hedge Fund) 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.