행동주의 헤지펀드와 대량보유보고규제에 관한 연구

Hedge fund activism has been spreading all over the world. There is an argument that the disclosure rules under the Financial Investment Services and Capital Markets Act("FISCMA") section 147 should be tightened by reducing the ownership threshold that triggers disclosure from 5% to 3% and shortening the period for disclosure following the ownership trigger being hit from ten days to one day, because activist hedge funds often obtain short-term profits at the expense of long-term value. This article studies the issue whether or not the disclosure rules should be tightened in order to respond to activist hedge funds. Activist hedge funds is hedge funds which engage in efforts to propose and aid in the implementation of changes in target companies' business and finance strategy to improve the value of target companies and extract more value to shareholders. The governance problem generated by the separation of ownership and control has been around for a long time, hedge fund activism attracts public attention because it may resolve this problem by holding management accountable. Activist hedge funds have been criticized as short-term speculators destroying long-term value, but various empirical studies show that hedge fund activism has a positive effect on the value of target companies. The regulatory choices over the disclosure rules have an effect on the incidence of hedge fund activism, so disclosure regime for major blockholders can play a role to regulate activist hedge funds. There is an argument that disclosure requirement threshold should be lowered from 5% to 2.5% because the practice of cooperating without formal group formation through the strategy of the 'wolf pack' points to activist hedge funds' capacity to avoid disclosure duties. In the United States there was an petition which advocate for more strict disclosure duties of activist hedge funds, reducing their ability to trade on shares after crossing the five percent threshold without disclosure from ten days to one business day. But the Securities and Exchange Commission was in agreement with activist proponents who argue that the disclosure rules should not be tightened, and SEC didn't shorten the deadline for reporting. First, this article reviews the argument that the deadline for reporting should be shortened. The FISCMA has the regulation of so-called 'cooling period' which prohibits additional acquirement of issuer's stocks during the period between the acquisition of a 5% stake and disclosure, so there would be no need to shorten the deadline for reporting to prevent additional acquirement of stocks during the above period. Next, this article reviews the argument that disclosure requirement threshold should be lowered. Even if several hedge funds use the 'wolf pack' tactic, the agreement between hedge funds can be recognized with circumstantial evidence and then the disclosure duties can be imposed on them. So it can't be said that it is necessary to lower disclosure requirement threshold because of 'wolf pack' tactic. This article reviews the argument that the disclosure rules should be tightened in order to respond to activist hedge funds. ① The sanctions provided by the FISCMA for the violation of the disclosure rules are so strong that it is necessary to be careful in tightening the disclosure rules. ② If the disclosure rules is tightened in order to respond to activist hedge funds, there would be a problem that the tightened disclosure rules impact all the investors. ③ Our country seeks greater institutional investor engagement with portfolio companies in its Stewardship Code. But tightening the disclosure rules would bring about a result that is contradictory to this movement. ④ If the incidence of activist hedge funds reduces by tightening the disclosure rules, hedge fund activism's positive effect on the value of target companies would reduce. ⑤ The regulator should not tighten the disclosure rules without a careful empirical analysis of the benefits of the tighter disclosure rules in terms of improved market transparency and its costs on shareholders and companies as a result of a reduction in the incidence of activist hedge funds.