Investment fund is a collective investment scheme which includes hedge fund, registered
investment companies, mutual fund, private equity fund, venture capital fund, or commodity
pools. The regulation for such funds is recently under review all over the world. Korea is not
an exception.
The laws and rules that govern the securities industry and capital market derive from a
straightforward concept: all investors, whether large institutions or private individuals, should
have access to certain basic facts about an investment prior to buying it, and so long as they
hold it. To achieve this, each country requires public companies to disclose meaningful
financial and other information to the public with some exceptions. One of exceptions has
been unregistered investment funds.
In the case of the United States, 3 major laws govern securities industry and capital market.
First, the Securities Act of 1933 requires that investors receive financial and other significant
information concerning securities being offered for public sale and prohibits deceit,
misrepresentations, and other fraud in the sale of securities. In general, securities sold in the
U.S. must be registered. Not all offerings of securities must be registered with the SEC.
Second, the Investment Company Act of 1940 regulates the organization of companies,
including mutual funds, that engage primarily in investing, reinvesting, and trading in securities,
and whose own securities are offered to the investing public. The Act requires these companies
to disclose their financial condition and investment policies to investors when stock is initially
sold and, subsequently, on a regular basis. The focus of this Act is on disclosure to the
investing public of information about the fund and its investment objectives, as well as on investment company structure and operations.
Lastly, the Investment Advisers Act of 1940 regulates investment advisers. With certain
exceptions, this Act requires that firms or sole practitioners compensated for advising others
about securities investments must register with the SEC and conform to regulations designed
to protect investors. Since the Act was amended in 1996, generally only advisers who have
at least $25 million of assets under management or advise a registered investment company
must register with the SEC.
Through the recent case of the Philip Goldstein, etal. v. SEC (D.C. Cir. 2006), it seems that
the SEC's endeavors for building up a wide and strong investment fund regulations encounter
an obstacle. However, the SEC keep working closely with many other institutions, including
Congress, other federal departments and agencies, the self-regulatory organizations (e.g. the
stock exchanges), state securities regulators, and various private sector organizations in order
to regulate investment funds.
While Korea has recently adopted the Financial Investment Services And Capital Markets Act
for the sound regulations of securities industry and capital market, it still needs to further
regulate investment funds, especially hedge fund. In addition, Korea's regulations for
investment fund are scattered in several laws which make efficient regulation difficult. These
complicated investment fund regulations should be reviewed for better and simple
understanding and regulation of investment fund.