자본시장법상 투자신탁 수익자총회의 문제점 검토

The Article 190 of the Financial Investment Services and Capital Markets Act amended 2010 provided the general meeting of beneficiaries. An investment trust shall hold a general meeting of beneficiaries consisting of all beneficiaries, and the general meeting of beneficiaries shall have the power to adopt resolutions for only those matters provided for by this Act or the trust contract(§190 (1)), the general meeting of beneficiaries shall be convened by the collective investment business entity that has created the investment trust(§190 (2)), a collective investment business entity that has created an investment trust shall convene the general meeting of beneficiaries within one month, if the trust business entity that keeps in custody and manages the investment trust property or the beneficiaries who hold 5/100 or more of the total number of units of beneficiary certificates, request the collective investment business entity in writing to convene the general meeting of beneficiaries, stating the purpose of the general meeting of beneficiaries and the reasons for convening the meeting. In this regard, if the collective investment business entity does not execute the procedure for convening the general meeting of beneficiaries with no justifiable reason, the trust business entity or the beneficiaries who hold 5/100 or more of the total number of units of beneficiary certificates may hold the general meeting of beneficiaries subject to approval by the Financial Services Commission(§190 (3)). The Article 363 (1) and (2) of the Commercial Act shall apply mutatis mutandis to the notice for convening a general meeting of beneficiaries(§190 (4)), the general meeting of beneficiaries shall be duly formed with the attendance of beneficiaries who hold the majority of the total number of units of beneficiary certificates, and shall adopt a resolution by the affirmative vote of two-thirds or more of the voting rights of the beneficiaries present at the meeting and one-third or more of the total number of units of outstanding beneficiary certificates∶Provided, that a resolution on the matters for which a resolution by the general meeting of beneficiaries is required in accordance with theprovisionsofthetrustcontract, in addition to the matters that require a resolution of the general meeting of beneficiaries pursuant to this Act may be adopted by the majority of voting rights of the beneficiaries present at the meeting and one-fourth or more of the total number of units of beneficiary certificates(§190 (5)), a beneficiary may exercise his/her voting rights in writing without attending the general meeting of beneficiaries(§190 (6)), a collective investment business entity that has created an investment trust (including the trust business entity or beneficiaries holding 5/100 or more of the total number of units of outstanding beneficiary certificates, who convene the general meeting of beneficiaries pursuant to the latter part of paragraph (3); hereafter the same shall apply in this paragraph) may postpone the general meeting of beneficiaries, if the number of units of beneficiary certificates held by the beneficiaries present at the meeting after the lapse of one hour from the time scheduled for opening the meeting fails to reach the majority of the total number of units of outstanding beneficiary certificates. In such cases, the collective investment business entity shall convene the postponed general meeting of beneficiaries within two weeks from the initially scheduled date(§190 (7)). In the event that the number of units of beneficiary certificates held by the beneficiaries present at the postponed general meeting of beneficiaries after the lapse of one hour from the time scheduled for opening the meeting fails to reach the majority of the total number of units of outstanding beneficiary certificates, it shall be deemed that the general meeting of beneficiaries is duly formed with total number of beneficiaries held by the beneficiaries present at the meeting(§190 (8)), the method of convening the general meeting of beneficiaries and the postponed general meeting of beneficiaries, the method of exercising voting rights in writing, and other matters pertaining to the general meeting of beneficiaries shall be prescribed by Presidential Decree(§190 (9)). Under the Financial Investment Services and Capital Markets Act amended 2010, however, there are many problems in the provisions relating to the general meeting of beneficiaries, especially the provisions relating to convene and resolution procedure of the general meeting of beneficiaries. In this paper, thus, I have investigated the legal problems of provisions relating to the general meeting of beneficiaries and suggested the settlement methods of the problems.