재간접펀드 집합투자업자의 주의의무에 대한 비교법적 고찰

Fund-of-funds structures inherently involve significant structural risks, including multilayered agency problems, information asymmetry, and limited oversight over underlying investment managers. Despite these features, the Korean Capital Markets Act does not provide a distinct regulatory framework for fund-of-funds arrangements, leaving the scope and content of due diligence and monitoring duties of the management company largely indeterminate. To address this gap, this article examines the legal nature of such duties under Korean law and explores how they should be defined in light of comparative jurisprudence. In particular, the article analyzes U.S. case law developed in the aftermath of the Madoff scandal—most notably Anwar, Sapirstein, and Schwarz—which articulates a robust fiduciary standard for feeder fund managers. These cases establish that managers bear an affirmative obligation to conduct independent and substantive due diligence, to identify and respond to recurring red flags, and to refrain from exaggerating or misrepresenting the scope of their investigative efforts. The U.S. jurisprudence demonstrates that mere reliance on external reports or adherence to formal procedures is insufficient to satisfy fiduciary duties where structural vulnerabilities and informational disadvantages faced by investors are profound. The article argues that these principles offer valuable guidance for Korean courts, which have not yet developed a comprehensive doctrine regarding the heightened duties applicable to fund-of-funds managers. By comparing the structural risks and legal functions of Korean fund-of-funds with their U.S. counterparts, this study proposes interpretive standards that Korean courts may adopt in resolving future disputes. Further, it identifies key areas for policy reform—such as the codification of due diligence protocols, continuous monitoring obligations, red flag response mechanisms, and enhanced disclosure requirements—to ensure more effective investor protection in the Korean asset management market. Ultimately, this study contributes to both doctrinal development and legislative discourse by reconstructing the substantive content of due diligence and fiduciary duties for fund-of-funds managers, drawing upon comparative insights from U.S. jurisprudence. It aims to strengthen the normative foundation for protecting investors within Korea’s increasingly complex fund industry.