벤처투자조합을 통한 자금조달시 공모 규제 적용과 투자자 보호

Although venture capital funds(ʻʻVC fundsʼʼ) are a specific type of private equity funds, they are governed by a different legal framework than that of private equity funds. While PE funds are governed by the Capital Markets Act, VC funds are governed by separate laws designed to promote VC investment. However, the discrepancy between the two laws has led to some controversy. According to the Korean Financial Supervisory Service, startups raising capital through VC funds may fall under the public offering regulations under the Capital Markets Act. Specifically, if the VC fundsʼ limited partners include more than 49 investors who are not classified as accredited investors under the Capital Markets Act, startups that raise funds from VC funds may be required to comply to prospectus disclosure requirements. Given that VC funds are not recognized as legal entities but rather as aggregates of contracts under the Korean law, the number and characteristics of VC fund investors play a significant role in determining whether startups are subject to public offering regulations. However, this interpretation imposes excessive restrictions on startups seeking to raise capital from VC funds due to the strict disclosure requirements under the Capital Markets Act. This approach also contradicts the typical fundraising process for startups. Generally, it is the general partners of VC funds who contact limited partners to solicit investments in their funds. In contrast, startups do not have direct access to these limited partners, making it difficult for them to determine the number of investors in VC funds or assess whether these investors are accredited investors. Furthermore, this interpretation places a significant regulatory burden on startups seeking capital from VC funds, even though companies raising capital from private equity funds registered under the Capital Markets Act do not face the same level of regulatory risk. Therefore, this article proposes that it is essential to update the current regulations for public offerings for companies raising capital from VC funds. The proposed changes include recognizing VC funds as separate entities rather than merely aggregates of contracts. If VC funds are established through private placements, they should be classified as accredited investors, regardless of the number and characteristics of their limited partners when investing in startups. In line with these suggestions, it is also crucial to enhance the responsibilities of general partners to protect limited partners at the time of VC fund formation to the same level as the general partners of private equity funds under the Capital Markets Act. Accordingly, general partners of VC funds should be required to assess the suitability of investors wishing to invest in VC funds based on their investment experience and expertise. Moreover, they should regularly provide investors with information regarding the operation of the VC funds.