간접투자법상 투자자 보호의무와 선관주의의무의 부담 주체 - 대법원 2020. 2. 27. 선고 2016다223494 판결을 소재로 -

초록

Under the Indirect Investment Asset Management Business Act, an asset management company runs the following businesses: (1) the business of establishing and terminating the investment trust; (2) the business of managing the investment trust property and giving management instructions; (3) the business of managing the investment company property, etc. Every asset management company has both the duty to protect investors at a stage of investment recommendations and the duty of care at a stage of managing the fund property. At a recommendations stage, an asset management company should provide investors with correct information concerning the profit model and the risk factor of the fund because the company is in the position of primarily producing and distributing the information of the fund. At a managing stage, an asset management company should manage the fund on an informed basis, in a prudent manner, and in the honest belief that its managing is in the investors’ best interest. The Korean Supreme Court Decision 2020. 2. 27. 2016Da223494 has dealt with the legal issues concerning the investor protection duty and the duty of care, suggesting the legal standards as follows: (1) An asset management company, who made a trust contract with investors to create an investment trust for compensation, has both the duty to protect investors and the duty of care, even though the company was not engaged in the business of providing advice to the investment trust; (2) Regardless of whether it is an asset management company or not, every person is legally obligated to protect investors if he both played a leading role in creating an investment trust by deciding primarily the profit model and the risk factor of the trust and recommended the trust to investors.

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