Special fund (investment company)
Fund is in investment companies or capital management companies the financial assets , which exclusively of the of investors acquired mutual fund shares refinanced is.
General
A special fund is an unincorporated asset that lacks its own legal personality and therefore does not enter into any rights or obligations . The special fund is not capable of governing bodies , but is managed by a legal entity , the investment or capital management company. Special assets are to be managed and accounted for separately from the assets of the investment company . The investment fund is refinanced by the investment certificates in circulation. A bankruptcy of the investment company does not bleed through to the fund so that full investor protection exists.
Legal issues
According to the legal definition of Section 1 (10) of the KAGB , special funds are domestic open-ended investment funds in contractual form that are managed by a management company for the account of the investors in accordance with the KAGB and the investment conditions, according to which the legal relationship between the management company and the investors is determined. Closed-end investment funds are not affected . Real estate funds are funds which, in accordance with the investment conditions, invest the money deposited with them in real estate (Section 1 (19) No. 23 KAGB). Pursuant to Section 92 (1) KAGB, the investment fund must be kept separate from the capital management company's own assets.
The KAGB provides for two forms of administration. Belonging to the fund assets may in accordance with the investment conditions of ownership of capital management company or joint ownership of investors are (§ 92 para. 1 KAGB). The first form is the fiduciary solution , the second form establishes co-ownership shares of the investors. Although the management company is the legal owner of the investment fund in the former , the investment fund is not liable for the liabilities of the capital management company in accordance with Section 93 (2) KAGB . This exclusion of liability is completed by Section 99 (3) KAGB, according to which the right of the capital management company to manage the investment fund expires when insolvency proceedings are opened against the capital management company's assets. The trustee solution is mandatory for real estate funds ( Section 245 KAGB). The units in the investment fund are evidenced in investment certificates in accordance with Section 95 (1) KAGB . If the assets belonging to the investment fund are jointly owned by the investors, the transfer of the claims evidenced in the unit certificate also means that the seller's share of the assets belonging to the investment fund is transferred to the purchaser (Section 95 (2) KAGB).
If the right of the capital management company to manage an investment fund expires, it is transferred to the depositary in accordance with Section 100 (1) KAGB - if the investment fund is owned by the capital management company . If it is jointly owned by the investors, the management and disposal rights over the investment fund are transferred to the depositary. The depositary has the fund handle and distribute to investors (§ 100. 2 KAGB). In addition, there is a prohibition of separation, obligation, debit and set-off under investment law (section 92 (1) sentence 2, section 93 (2) sentence 2 and sections 3 to 6 of the KAGB).
Components and evaluation
More than 50% of the investment fund must - analogous to Section 2 (6) and (9) InvStG - contain the financial instruments that give the investment fund its name, i.e. shares in equity funds , bonds in pension funds , money market papers in money market funds or real estate in real estate funds .
The investment fund is composed concretely of cash , bank accounts , shares related rights ( rights claims for dividends ), associated with bonds rights ( coupons , conversion rights convertible ) or rights from hedges to price or interest hedging received swap or exchange transactions .
The valuation of the investment fund results from the capital investment accounting and valuation regulation (KARBV). If the depositary evaluates a UCITS with the participation of the capital management company, the capital management company must check the valuations for assets determined by the depositary in accordance with Section 26 (1) KARBV in a suitable manner for plausibility and ensure that any irregularities are clarified. The valuation of assets with a stock exchange price has to be done with the last available tradable price ( § 27 Abs. 1 KARBV), whereby a quotation with bid and ask prices must lead to a valuation either at the middle or at the bid price (§ 27 Abs. 3 KARBV). Otherwise, market values must be used as a basis ( Section 28 KARBV), which can also be determined and communicated by an issuer , counterparty or other third party. According to Section 29 KARBV, units in investment funds are valued at their last determined redemption price. In order to determine the market value of a property, the earnings value of the property is to be taken as a basis using the earnings value method ( Section 30 KARBV).
Fund management
The fund management is in the organizational structure in charge of capital management companies in order to invest the funds in particular by law. If the investment fund's portfolio consisted of just one asset class and a single issuer , this portfolio would have a maximum cluster risk . If this issuer becomes insolvent and there is no creditor protection ( e.g. deposit protection ), the capital management company faces the risk of total loss of the entire fund. This is why risk diversification should also be aimed for through granularity with the aim of first selecting several issuers and then selecting different asset classes. The acceptance of another asset class ( English asset allocation ) for portfolio which improves risk-reward characteristics , thus increasing the yield and / or decreases the volatility or vice versa, resulting in a higher risk-adjusted yield ( English sharp ratio ) implies. A negative market development in one asset class can then be compensated for by a positive development in another class. The asset allocation ensures that the investment fund is divided into different asset classes. A sensible asset allocation should optimize the risk / return ratio of a portfolio by combining different asset classes.
Investment companies and capital investment companies may only invest funds according to the principle of risk diversification ( Section 214 KAGB, Section 243 KAGB). The rating of the issues must be observed, which must be within investment grade . This also applies to insurance in accordance with Section 124 (1) No. 7 and 8 VAG , according to which the investments are to be mixed and dispersed appropriately in such a way that excessive dependence on a specific asset or issuer or on a specific group of companies or a geographical one Space and an excessive concentration of risk in the portfolio as a whole are avoided and investments with the same issuer or with issuers belonging to the same group of companies must not lead to excessive risk concentration.
Legal consequences
Investment funds are not insolvent , because they do not belong in accordance with § 99 para. 3 sentence 2 KAGB the bankruptcy estate capital management company. Investor protection is therefore guaranteed under investment law and does not require a separate deposit guarantee . However, this only covers the issuer risk of the investment company; however, the investor bears the usual financial risks, in particular the price risk or interest rate risk of his investment certificates.
Demarcation
The term investment fund is used in the KAGB as a generic term for all investment funds , regardless of their legal form ; The legal form for investment funds is the stock corporation and the limited partnership . The investment fund as a generic term also includes the special fund. Domestic UCITS only form special funds (Section 45 KAGB to Section 65 KAGB), and open-ended real estate funds may only be managed as separate funds.
A special case is the old-age provision special fund ("AS fund").
Web links
Individual evidence
- ↑ Jürgen Baur, Falko Tappen (ed.), Karin Lichtenstein: Investment Laws: Großkommentar KAGB , 2015, p. 1011
- ↑ Dirk A. Zetzsche: Principles of collective investment . Mohr Siebeck, Tübingen 2015, ISBN 978-3-16-152271-0 , p. 841 ( limited preview in Google Book search).
- ↑ Dirk Söhnholz / Sascha Rieken / Dieter G. Kaiser, Asset Allocation, Risk Overlay and Manager Selection , 2010, p. 99
- ↑ Petra Buck-Heeb, Capital Markets Law , 2014, p. 272
- ↑ Petra Buck-Heeb, Capital Market Law , 2014, p. 278 f.
