헤지펀드와 관련된 불공정거래행위에 관한 고찰 －미국의 사례를 중심으로－

The recent passage of the Dodd-Frank Act introduced a new regulatory regime for hedge funds and their managers. The Act requires more hedge fund managers to register as investment advisers and implements a significantly enhanced set of disclosure and reporting requirements. The Act also empowers the SEC to define the depth and breadth of this new regulatory regime through future rule-making. When discussion regarding the introduction of hedge funds into the Korean financial markets began, there was an intense dispute concerning whether hedge funds will impose risk to the Korean financial markets. While hedge funds have helped make Korean financial markets more efficient, they may hurt investors and the financial markets through investor fraud and market manipulation, such as insider trading, late trading and market timing. Recently, such practices are becoming more widespread as the industry expands rapidly due to the market competition. With the establishment of Financial Investment Services and Capital Market Act (FISCMA), Korea will introduce hedge funds to its financial market for the first time. In order to reduce the risk of securities law violations by hedge funds, one reasonable approach is to modify the application of the current private equity fund regulations as appropriate to hedge funds. Korean hedge fund advisers should not be exempt from the basic regulation applicable to other private equity fund advisers. It should be clear that Korean hedge fund managers should be registered with the government regulators under a robust investment adviser regulatory regime. The government regulators should also strengthen the new "Chinese Walls" regulation to reduce hedge fund fraud. Chinese Walls are operational protocols established by hedge funds to prevent cross-leakage of material, non-public information between various traders working with different investment or securities. Furthermore, establishing a self-regulatory organization can eliminate the need for investors to conduct extensive due diligence on hedge funds. Korean hedge fund investors will likely unsophisiticated compared to their counterparts investing in U.S. hedge fund. Therefore, without such protection, Korean hedge fund investors, regardless of their level of investing expertise, will remain "naked" with the introduction of hedge funds in the Korean financial market.