미국에서의 헤지펀드 규제 동향과 시사점

Unfortunately 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" In USA, legal framework to regulate securities market includes the Securities Act of 1933, the Securities Exchange Act of 1934, the Investment Company Act of 1940, the Investment Adviser Act of 1940. To except from registration with SEC, Hedge Fund manipulated the requirement needed by grouping their clients under fifteen or selecting only certain investor, pooling through private placement. 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 an investor in respect to the term "client" in the Investment Adviser Act. It was called as "Hedge Fund Rule". 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). The court concluded that SEC’s attempt to regulate Hedge Funds by relying on the number of investor in the fund was unreasonable. As a result of Goldstein, it is more important to make legislative efforts for regulating Hedge Funds. In 2006, Sen. B. Frank offered a Bill to authorize the SEC to require the registration of a Hedge Fund Adviser. 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. After experiencing financial crisis in summer 2007, a bill called "Hedge Fund Transparency Act" was proposed to regulate Hedge Funds by Sen. C. Levin in Jan. 2009.