집합투자자총회의 의사결정구조에 관한 고찰

Today’s collective investment market has become more important way of investment for general investors as the financial market is professionalized and advanced, and thus appropriate regulations for effective operation and management of collective investment schemes are more significant in the regard of protection of investors. The Capital Market Act, in particular, mainly applies regulations in the commercial act to investor protection that is needed in operation of collective investment schemes. In this context, the purpose of this study is to investigate securing effectiveness of investor protection by comparing to regulations in commercial act to present interpretation standards for operation of the schemes. In general, collective investment schemes are used as a means of conducting collective investment business. The legal types of the schemes include trust, corporation, and cooperative, the Capital Market Act applies specifically, the general meeting of beneficiaries are regulated on collective investment schemes of trust type, the general meeting of shareholders (or the general meeting of partners) are regulated on the schemes of corporation type, and the general meeting of members of an association (the general meeting of undisclosed members) are regulated on the schemes of cooperative type (Article 190, 201, 215, 220, and 226 of the Capital Market Act). The general meeting of collective investors of collective investment schemes is for identifying the basic principle of “investor-based" in asset management and for securing transparency in democratic procedures and operation to devise an optimal means of investor protection. However, indifference of investors, various inconveniencies, and legally difficult problems have been occurred in practical operation of general meeting of collective investors. The protection of investors that had expected has not been properly realized, and the problems are criticized as they decline efficiency in operation. One of the biggest reasons of failing in activating general meeting of collective investors is investors who prefer having interest in the performance of to participating in the operation of collective investment schemes, resulting in there have not general meetings of collective investors that were held on a normal basis. As for general operational procedures of the general meetings, controversies of interpretation have been raised as there are only general regulations and no specific methods or regulations on procedures are established. In particular, important items of trust agreement are established as resolutions of the general meetings; the Capital market Act establishes certain items, the detailed items are entrusted to enforcement ordinances of the Act, and certain items of the ordinances are entrusted to notifications of the Financial Services commission. However, such regulation system has a problem of deviation from the restriction of delegated legislation, resulting in requiring reexamination, for the purpose of the Capital market Act is to protect profits of investors who were institutionally excluded by inducing the investors to participate in the decision-making of general meetings actively and to directly make decisions on important issues of trust agreement. Finally, as for requirements of resolution, the existing quorum for proceedings was deleted and the quorum for resolution was alleviated for convenience of decision-making, but postponed general meeting of investors are established to be held for unsettled items. However, there are various inefficient and unreasonable issues such as duplication of expense based on holding postponed general meeting of investors, postponement of decision-making, and distortion of decision-making, thus requiring examination on the basis of theory of legislation. The general meeting of collective investors may be the most reasonable alternative with which investors reflect their own intention and protect their rights and interest. Although perception and interest of investors on the general meeting are important, it is also needed to present reasonable measures on issues causing controversy in interpretation from the institutional aspect to improve unreasonable and inconvenient items.