사업신탁의 자본시장법상 규제에 관한 연구

The Trust Law amended in 2011 introduced the business trust, where business itself is entrusted to a trustee who manages the business for the benefit of beneficiary. However, it is not feasible to utilize it due to delay in amendment of the Financial Investment Services and Capital Markets Act(the “Capital Markets Act”) to reflect it. This article aims to analyze the regulatory issues on business trust from the Capital Markets Act perspectives and suggest how to regulate it. As it is typical for a trust company to be a trustee in Korea, it is anticipated that there will be demands for a trust company to be a trustee in business trusts. In order to make it possible, it needs to amend the Capital Markets Act so that business itself will be added to the kinds of trust assets which can be entrusted to a trust company. In permitting so, a specialized business trust company which does not engage in another financial business can be considered in order not to be conflict with the principle of separation of industrial and financial capital. The limited liability trust pursuant to the Trust Law can be used to address the concerns regarding deterioration of the trust company’s soundness. When the business trust is permitted as one of the trust businesses, the Capital Markets Act also should be amended so that management of business and its related activities will be regarded as delegatable affairs of a trust company. Meanwhile, a company other than a trust company may intend to be a trustee of a business trust by way of declaration of trust and issue beneficial certificates for purpose of raising fund. In that case, there is a necessity of protecting investors and therefore, such a trustee needs to be regulated as involving a qusi-trust business which should be subject to certain obligations of a trust company under the Capital Markets Act. If the trustee of a business trust issuing beneficial certificates, it should be regarded as conducting the financial investment dealing business, in order to protect the investors. The business trust has the feature of active management of business while the collective investment scheme is a passive management device. Therefore, the regulations of collective investment scheme should not be applicable to the business trust, even if multiple investors are involved thereto. Nonetheless, regulatory measures on such business trust needs to be strengthened to eliminate the regulatory arbitrage between the trust business and collective investment business, because the latter has the stricter regulations than the former. The issuance of beneficial certificates will be subject to the securities offering and sale regulations under the Capital Markets Act. Because the business trust has great flexibility in designing its internal organization, beneficial interest, etc., the investors need to be fully informed of such matters and clearly consent to them. For this, the securities statements and prospectus in issuing the beneficial certificates of a business trust include the details of the business trust. The Capital Markets Act should be amended to that effect. In addition, it will be desirable for the regulators to conduct substantial review of securities statements. The regulations on secondary market disclosure under the Capital Markets Act also need to be imposed upon the trustee of the business trust who issued beneficial certificates. The business trust is similar to a business company and its trustee is similar to a director of a company. In this regard, the business trust is different from financial investment products which are regulated by the Capital Markets Act. Therefore, the matters relating to regulating the business trust should be included in the discussion about separating the law for the trust business from the Capital Markets Act.