契約型 不動産投資信託(REITs) 制度의 法的 檢討에 관한 硏究

다국어 초록 (Multilingual Abstract)

Although investments in real estate have been used so far as model asset management yielding highest profits, most of them have been in the form or method of direct investments. However, since the direct investors in real estates should be financially capable, the number of them has had to be limited. On the other hand, since such direct investors in real estates need to explore profitable real estates with precise assessment and analysis of invested values, they should be armed with expertise and experiences. Of course, since the direct investment in real estates require a considerable sum of capital, the risk of loss becomes larger that much. In the real estate markets, therefore, direct investments have been mostly speculative enough to be controlled by various laws enacted by the government.
Meanwhile, our real estate markets have remained stagnated due to unfavorable external environments such as IMF bailout program or smaller pool of investors. In order to improve the efficiency of real estate markets and enhance their flexible responsiveness to changing external environment or market opening, it may be deemed necessary to introduce advanced investment models, while taking measures to improve the added value of real estates. "Real Estate Investment Trusts" (REITs) system is appreciated as one of the indirect real estate investment models responding to such social needs. The new system draws much attention, because it allows the small investors to participate in real estate investment and thereby, have them share the fruits from the real estate investment.
Since the IMF bailout program, one of the most drastic changes in domestic real estate markets may have involved the liquiditization of real estate value. Meanwhile, in an effort to facilitate the restructuring of domestic businesses and financial institutions and recover the real estate markets, the Korean government has promulgated "Law on Liquiditization of Assets" and "Mortgaged Bond Liquiditization Law" as grounds for liquiditization of real estates. However, the new systems have not successfully been established as financing means, and therefore, the argument for REITs gains strength.
REITs is a kind of mutual fund engaged specially in real estate investments. It is raised with the sums of money trusted to it. The fund will be loaned to real estate businesses, and divide the profits of loan to investors. Its legal entity may be "corporation" or "business trust". REITs is different from the conventional real estate trust which manages, disposes or develops the real estates trusted with it.
Being aware of its efficiency and necessity, Ministry of Construction and Transportation is moving to enact a so-called "Real Estate Investment Company Law" imitating the US REITs system, which is scheduled to be implemented beginning from late 2001.
Meanwhile, the Korean government amended the "Regulations for Trust Business Law" in April, 1998 to allow the trust businesses to be engaged in "contract-based (trust-based) real estate investment and trust". Nevertheless at this moment two years after the amendment, a trust business has yet to be established against the expectation of government, which suggests that some measures be taken to activate the "contract-based real estate investment and trust" businesses.
In the US real estate markets, financial capitals and real estates have already been combined, and thereby, the conventional attractions of real estate ownership have almost lost. In contrast, the Korean real estate markets are still being toughly controlled because they are seen as problematic or speculative markets. Such a backwardness of our real estate markets may be attributable to their dependency on non-professional direct investments only.
The "contract-based real estate investment and trust" system may be earlier established if its legal mechanisms and relevant codes should be rearranged, but it seems to be difficult to expect that the real estate and trust businesses will play their own roles and functions, because they are only allowed to be engaged in trust and relevant financial services due to lack of detailed specifications as well as poor linkage between Trust Business Law and Bank Law or Security Trade Law.
With such basic conceptions in mind, this study was aimed at reviewing the background, purposes and legal aspects of "contract-based real estate investment and trust system" - which is a kind of specialized and advanced indirect real estate investment means - and thereby, exploring the ways to activate the new system.
To this end, contract-based and corporate-based real estate investment and trust systems were compared, and in particular, structure of contract-based real estate investment and trust system was examined to address its problems and find solutions to them. In addition, in order to protect the investors - which is a pre-condition for development of the contract-based real estate investment and trust system - its service and operation structure were analyzed in depth.

목차 (Table of Contents)

• 第 1 章 序論 = 1
• 第 1 節 硏究의 目的 = 1
• 第 2 節 硏究의 方法 및 範圍 = 2
• 第 2 章 REITs 制度의 理論的 背景 = 4
• 第 1 節 REITs의 意義 = 4
• 1. REITs의 槪念 = 4
• 2. REITs의 類型 = 6
• 第 2 節 REITs 制度의 導入背景 = 15
• 1. 理論的 背景 = 15
• 2. 우리나라의 REITs 制度 導入背景 = 16
• 3. REITs의 市場規模 = 17
• 4. 不動産의 證券化 = 18
• 5. REITs 制度導入의 推進 經過 = 22
• 第 3 節 外國의 REITs 制度 = 24
• 1. 美國의 REITs = 25
• 2. 濠洲의 LPT = 32
• 3. 日本의 SPC = 37
• 4. 유럽의 REITs = 43
• 第 3 章 契約型 REITs의 法的 檢討 = 45
• 第 1 節 現行 契約型 REITs 制度의 根據와 性格 = 45
• 1. 法的根據 = 45
• 2. 法的 性格 = 46
• 第 2 節 契約型 REITs의 法的 制度的 裝置의 補完 = 47
• 1. 關聯規定의 整備 = 47
• 2. 『信託法』上의 問題 = 50
• 3. 投資者 保護를 위한 流動性의 確保 = 51
• 4. 信託의 中途解止와 換買 = 54
• 5. 公示規定의 整備 및 强化 = 58
• 6.『資産流動化에關한法律』 = 62
• 第 4 章 契約型 REITs의 活性化 方案 = 64
• 1. 信託兼營銀行의 規制緩和 = 65
• 2. 不動産信託社등 REITs 業務關聯 許容對象 擴大 = 66
• 3. 信託의 構造 = 66
• 4. 運營構造 = 67
• 第 5 章 結論 = 69
• 參考文獻 = 71
• 부록 = 73