펀드의 비용규제와 집합투자업자의 신인의무 －미국 투자회사법 제36(b)조상 신인의무를 중심으로－

This paper discusses adequacy of mutual fund expenses and possibility of imposing fiduciary duty on investment advisers. As with any business, running a mutual fund involves costs. For example, there are costs incurred in connection with investor transactions, such as purchases, exchanges, and redemptions. There are also regular fund operating costs that are not necessarily associated with any particular investor transaction, such as investment advisory fees, marketing and distribution expenses, brokerage fees, and custodial, transfer agency, legal, and accountants fees, etc. Mutual fund investors continue to pay significantly higher fees than institutional investors for the same services. In Jones v. Harris Associates, decided in 2008, the Seventh Circuit broke with the widely followed, thirty-year-old precedent of Gartenberg v. Merrill Lynch Asset Management. Further, it held that "A fiduciary duty differs from rate regulation. A fiduciary must make full disclosure and play no tricks but is not subject to a cap on compensation. The trustees (and in the end investors, who vote with their feet and dollars), rather than a judge or jury, determine how much advisory services are worth."This paper argues that the decision of Jones Court does not match with the intent of the Congress that amended the Investment Company Act in 1970 by adopting Section 36(b) to improve mutual fund fee schedules. Unfortunately, Congress had not defined what it meant by a “fiduciary duty” with respect to compensation. For improving mutual fund fee schedules and preventing excessive expenses, in Korea, the introduction of an explicit fiduciary duty of investment advisers may preclude them from exploiting individual investors.