자본시장법상 투자신탁재산의 파산 가능성

Traditionally, the trust has been understood primarily as a device for property management and succession. In modern capital markets, however, its use as a vehicle for commercial investment has expanded rapidly. In particular, investment trusts under the Financial Investment Services and Capital Markets Act (the “FSCMA”) are funds that adopt the trust structure set out in Article 2 of the Trust Act which pool the funds of multiple investors to invest in securities, real estate, derivatives, and other assets, thereby establishing themselves as core financial products. Article 80(2) of the FSCMA limits the liabilities of the asset managers and trustees to the assets comprising the investment trust estate. Unlike other types of funds or limited liability trusts under the Trust Act, however, the FSCMA does not contain explicit provisions on the liquidation or bankruptcy of the trust estate. Against this background, this article examines three scenarios in which the need for bankruptcy proceedings in respect of the investment trust estate itself may arise, focusing on: (i) issues concerning the limitation of the trustee’s liability in light of the diversification of real estate fund management structures; (ii) the protection of investors and creditors where both the investment trust and the asset manager become distressed; and (iii) challenges relating to the identification of contracting parties amid the expansion of derivative transactions and the consistency of domestic arrangements with the international financial environment. After carefully examining these scenarios, this article argues that the questions of how to structure the trustee’s liability to third parties in connection with an investment trust under the FSCMA and, further, how to treat investment trust property once it becomes balance-sheet insolvent require coordinated consideration across the Trust Act, the Capital Markets Act, and the Debtor Rehabilitation and Bankruptcy Act.