수익증권발행신탁 관련 자본시장법상 제 문제

Since the enactment of the Trust Act in 1961, it was amended in whole and will be in force from July 26 this year. This amendment was made in order to accommodate the changed market environment and make it in line with global standard. On the other hand, the Financial Investment Services and Capital Markets Act(“Capital Markets Act”) has not yet amended reflecting the amended Trust Act and accordingly it seems to be in conflict between the two Acts in many respects especially from the Trust Business perspective. In preparation for the implementation of the Trust Act, Financial Services Commission released the draft of the amendment to the Capital Markets Act in an effort to minimize potential regulatory conflict or regulatory gap between the two regimes. From a long-term perspective, the concept of “securities” under the Capital Markets Act should be amended to distinguish the “securities in theory”(i.e., transferrable securities) from non-transferrable securities, and make it clear what securities are subject to Capital Markets Act. It may be also necessary to have the relevant rules or regulations in place in the Capital Markets Act in order to prevent any possible circumventive acts in the marketplace using the beneficiary certificate issuance trust and minimize the regulatory arbitrage between the beneficiary certificate issuance trust and collective investment scheme. In addition, it should be taken into consideration whether mandated disclosure is necessary for the beneficiary certificate issuance trust especially in the secondary market in order for the investors to make an informed decision. It should be noted, however, that it is advisable Capital Markets Act be amended to accommodate the amendment to the Trust Act to the extent practicable while putting the relevant rules and regulations in place necessary for the public interest and investor protection.