역외펀드 투자와 자본시장법의 국제적 적용범위 -역외적용 및 국제사법적 쟁점에 대한 서론적 고찰-

Recently, domestic investors who have invested in offshore funds have suffered massive damages. Accordingly, the time is ripe to review the ex-ante measures or the ex-post remedies to protect domestic investors, which can be done through the international application ― or extraterritorial application ― of the Financial Investment Services and Capital Markets Act of Korea (the “Capital Markets Act”). It is difficult, however, to find a case in which the above issues have been discussed, whether practically or academically, in relation to offshore funds investment. In the context of the above, this article aims to present legal issues that can be derived from the characteristics of the current regulation of offshore fund registration under the Capital Markets Act under the classification of public and private law. Such issues are derived and preliminarily explored from the perspectives of extraterritorial application of the Capital Markets Act, in relation to the private international law. From the perspective of public law or international financial regulation law, this article suggests that more specific conditions for exemption from offshore fund registration be provided and that the current system of registering a fund product, rather than its manager, be reconsidered. From the perspective of private law or international financial transaction law, civil liabilities such as prospectus liability is examined in light of the previous discussions on the relationship between extraterritorial application of the Capital Markets Act and private international law. Because international financial transaction law further relates to areas of choice-of-law rules, active discussions going forward on more detailed legal analysis on civil liabilities of offshore funds or their managers to domestic investors from the perspective of private law would be much desired.