한국형 프라임브로커(Prime Broker)의 도입 및 운영에 관한 법적 쟁점

As the amended Enforcement Decree of the Financial Investment Services and Capital Markets Act became effective on September 30, 2011 after long discussions and reviews, requirements for hedge fund management companies and related professionals were prepared, measures to prevent conflicts in interests were strengthened during the operation process, and regulations on financial investment services which define the requirements and services of exclusive brokers corresponding to prime brokers were amended and enforced, the Korean-style hedge fund system has finally begun in the Republic of Korea. Prime broker is absolutely needed for hedge fund industry, providing comprehensive services relevant to hedge funds. Practically, in foreign countries, hedge fund and prime broker industry have developed a parallel relationship, thus it is inevitably necessary to introduce Korean-style prime broker system in order to establish and vitalize Korean-style hedge fund system. Meanwhile, exclusive brokers who can be seen as prime brokers in the Korean-style hedge fund structure have authorization both to maintain properties of the hedge fund and to be the trading partner of the hedge fund in arbitrating and settling sales transactions. In the process, there is a possibility of conflicts in interests, and thus adequate regulation on this is necessary. In this circumstance, many studies have been made on the foreign cases and the introduction measures relevant to the introduction of the Korean-style hedge fund. However, studies on prime broker systems which are essential to operate hedge fund system have not been sufficiently made. Especially, while Capital Markets Act and Financial Investment Services Regulations have been amended to introduce Korean-style hedge fund system and several disciplines including good practices have been prepared by the financial authority, these changes have not been reviewed thoroughly enough. In particular, in case where a prime broker managing the property of hedge fund go bankrupt as has been controversial in some foreign countries in the past, the ownership relations for hedge fund assets should be reviewed in the perspective of domestic laws regarding how the assets can be protected, while refinancing and its related risk of trading partners － the core of prime brokerage － should be reviewed from a domestic civil law perspective. Accordingly, in this thesis, the author will overview some general issues such as the definition and work requirement of prime brokers, their relationships with hedge funds, regulations on prime brokers in foreign countries, etc. Then, Korean-style prime brokers (exclusive brokers) defined by the amended Capital Markets Acts and other regulations will be explained. Regarding the establishment and operation of the Korean-style prime broker system, (1) the ownership relations of collective investment assets, properties managed and maintained by prime brokers, will be reviewed, based on which the overall legal relationship about refinancing and risk measures for trading partners of the hedge fund are considered. In addition, the author will examine (2) the basic issues in domestic civil law on the overall processes from making a sales contract to settling the transaction through prime brokers.