투자펀드에서의 관계인거래에 대한미국의 규제와 시사점

Investment funds, due to the nature of separation of investor and investment manager, inevitably face conflict of interest issues because the manager may potentially abuse the fund for the benefit of itself or its related parties. Such issues rise to the surface when there are transactions between the investment fund and its related parties. Consequently, one of the most important goals of investment fund regulation is to protect investors from risks stemming from affiliates transactions. The US has very specific and systematic investment fund regulations concerning affiliates transactions, which categorize the issues depending on the status of the affiliates and type of transaction. In addition, US regulations allow various exemptions and exceptions for types of transactions that are unlikely to be abused by the affiliates, securing the balance between the regulatory purpose of protection of the investors and the efficiency of investment management. Thanks to such flexible application of the regulations by the US regulator focusing on the regulatory purposes based on fine-tuned regulatory provisions, US regulation concerning affiliates transactions has played an important role in maintaining and improving the reputation of the investment fund business and protecting investors. On the contrary, the regulations around affiliates transactions under the Financial Services and Capital Markets Act of Korea (“FSMCA”) require overall reassessment, based on the study of the well-established regulatory system of the US which is well designed to the point of prohibition of abuse of the fund by the affiliates. Most of all, it is hard to find any reasonable ground for the different categorization of ‘major shareholders, etc. of asset management company’ and ‘asset management company, etc.’ and giving different treatment to those two categories – the former is regulated as affiliates transaction and the latter is regulated as unsound business practice. Thus, such regulation structure under FSCMA without sound grounds needs to be revisited. In terms of how to regulate affiliates transactions, it is necessary to improve the effectiveness of the regulation by building up more reasonably categorized provisions to cover various status of affiliates and types of transactions, instead of simply prohibiting the ‘transaction’ as stipulated in the current FSCMA. In addition, as there are only narrow exceptions available in the FSCMA, which may be excessively restrictive, it is necessary to achieve balance between investor protection and the efficiency of investment management by allowing fair and constructive transactions while prohibiting abuse by affiliates. Finally, it is recommendable to consider setting up a separate set of regulations for investment funds that do not invest mainly in securities, as such funds (e.g. real estate funds, etc.) that have a totally different character and nature.