사모투자기구 설립·운용자의 업무집행의 한계 - 상환전환우선주 조건변경을 중심으로 -

The Korean Capital Markets Act prohibits investors in institution-only private funds from participating in the management of the fund. This prohibition, combined with the broad discretion granted to the general partner (GP) and the structural conflict-of-interest incentives inherent in the private equity industry, has generated ongoing regulatory debate. This Article distinguishes between statutory obligations and obligations arising under the fundʼs articles of incorporation. After the target company issued redeemable convertible preferred shares (RCPS), it retained sole discretion over the timing of redemption, effectively leaving the redemption period indeterminate. However, because this situation stems from gaps in the applicable statutory framework, it is difficult to conclude that the subsequent amendment of the redemption conditions is invalid per se. The special purpose company (SPC) held both RCPS and common shares. Because the redemption conditions for the RCPS were not satisfied due to the target companyʼs poor performance, and because the likelihood of future satisfaction of those conditions was not substantial, it is difficult to conclude that the SPC would have derived any benefit even if it had refused to consent to the amendment of the redemption terms. Accordingly, the officer responsible for managing the SPCʼs affairs cannot be found to have breached any statutory duty of loyalty owed to the SPC or to the fund in connection with the amendment. Nevertheless, where the fundʼs articles of incorporation impose duties of loyalty and disclosure toward individual investors, a breach of the duty of loyalty may, in certain circumstances, fall within the scope of managerial discretion. By contrast, a breach of the duty of disclosure is less readily justified as a permissible exercise of such discretion.