투자일임업과 관련한 몇 가지 법적 쟁점

서지정보

ㆍ발행기관 : 은행법학회 ㆍ수록지정보 : 은행법연구 / 4권 / 1호
ㆍ저자명 : 오영표, 노태석

목차

"Ⅰ. 서론
Ⅱ. 투자일임업에 대한 개관
1. 투자일임업의 개요
2. 투자일임계약의 법률관계
Ⅲ. 투자일임업 관련 법적 쟁점
1. 투자일임업과 집합투자업의 구분
2. ‘자문형랩’에 대한 법적 검토
3. ‘적립식 자문형랩’ 판매금지
4. ‘스팟형랩’ 판매금지
Ⅳ. 투자일임업에 대한 바람직한 감독규제
1. 본질적 업무의 위탁허용에 대한 재고의 필요성
2. 투자일임재산의 확대의 필요성
Ⅴ. 결론"

한국어 초록

2010년 한 해 동안 자본시장에서 투자자, 금융투자업자 및 금융감독당국의 시선을 많이 끌었던 용어 중 하나는 ‘랩(wrap)’일 것이다.1) 랩(wrap)은 랩어카운트(wrap account)의 줄임말로서 투자일임업에 근거하여 투자자의 자산관리를 포괄적으로 하여주는 금융투자업자(투자중개업자)의 계좌의 한 종류를 말하는데, 실무상으로는 투자일임업에 근거하여 금융투자업자(투자중개업자)가 판매하는 상품, 즉 투자일임상품을 칭하기도 한다.

영어 초록

"Since discretionary investment business was introduced into Korea in 1997, discretionary investment business has been growing rapidly. Total discretionary investment property was up to KRW 27 trillion as of 30 June 2010. Especially total size of discretionary investment property as of 2010 jumped to double from 2009. Recent rapid growth of this business is due to introduction of “Advisory Outsourcing Wrap Account”, through which discretionary investment
business entities can manage the consulting of discretionary investment property with Outside Investment Advisors. High yield of profit in several Advisory Outsourcing Wrap Accounts attracted many investors' attention. So money moves from funds into wrap account.
Since Financial Supervisory Committee(FSC) adopted “Collective Order”, by which discretionary investment entities can make sell or buy order collectively from many wrap accounts and allocate them to each wrap accounts in 2007, it is possible to manage wrap accounts under Collective Investment Scheme(CIS) despite there are many regulatory differences between discretionary investment business and CIS. So FSC amended 『Regulations on Financial Investment Business』(“RFIB”) in September 2010 by stipulating more detailed standards of distinguishing discretionary investment business from CIS in order to reinforce
individualized treatments of discretionary investment business. The methods of FSC approaching the differentiation between discretionary investment business and CIS are reasonable in whole, but there are still several issues, especially similarity in treatment of portfolios as not equipped requisite of discretionary investment business.
On the other hand, in regard to Advisory Outsourcing Wrap Account, several legal issues are accompanied; regulatory point of view, practically it is very difficult to classify Advisory Outsourcing Wrap Account with “Management Outsourcing Wrap Account”, in which independent investment advisory is made solely for management and separately from discretionary investment business entity. Therefore in practice many Advisory Outsourcing Wrap Accounts are managed like Management Outsourcing Wrap Account, which is unsound
business under the Financial Investment Services and Capital Markets Act(FISCMA).
Finally I suggest to expand the range of discretionary investment property to the real estates and the rights linked real estates, same as the former Indirect Investment Asset Management Act, in order for many investors to have opportunities of receiving total asset management services for investment to financial investment instrument as well as real estate products."

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