자본시장법상의 금융소비자 보호 (Protection of Financial Consumers under the Capital Market and Financial Investment Industry Act)

서지정보

· 발행기관 : 한국기업법학회
· 수록지 정보 : 기업법연구 / 24권 / 3호 / 393 ~ 426페이지
· 저자명 : 서완석

초록

The reason why developed nations in the area of finance has streamlined the consumer protection system in large scale derives from the recognition that this measure is of vital importance not only in protecting the comparatively weak consumers in finance area but also in building a confidence in capital market.
Through this measure, it will be possible to increase the wealth of nation at the end with a concomitant effect of nurturing the potential of financial investment industry.
Under this consideration, the writer has examined the related financial consumer protection clauses of the current law and suggested carefully some alternatives to the seemingly problems or loopholes in the following.
First of all, the writer suggests that an autographed confirmation document system under the current law should be abolished considering the reality that ex-post regulatory measures usually play a role only as a formality.
In this sense, the writer suppose that deposition or recording would rather secure the substantial implementation of explanatory obligation in the law.
Second, the writer suggests that the explanatory obligation of financial investment company can be exempt in case where clients even though they are general investors, positively express their position that they already know the key points of the financial product concerned for the purpose of expediting smoother trade.
Third, it is necessary to specify more definitely the extent to which the explanatory obligation is performed.
Fourth, it will be hopeful that the contract document in which statutory clauses are included, should be delivered to the prospective investors before contract is concluded so that the investors can check the necessary points in deciding whether they do a real deal or not, in the case of Japan.
Fifth, it is necessary to supplement policies to prevent the misrepresentation of Article 49 (3) of the Capital Market and Financial Investment Industry Act (the Act) and Article 54 of Enforcement Ordinance of the Act.
Sixth, the legislative measures which could prevent manipulations of the Act that forbids unsolicited call are taken into account in the light of the Article 36 (6) of Japanese Financial Instrument and Exchange Law.
Seventh, the writer suggests that all solicitation against will should not be forbidden by law but prohibited solicitation against will should be specifically enacted by risks with regard to an appropriate interpretation of Article 49 (4) of the Act and the case of United Kingdom.
Eighth, under the Act the time period which terminates the contract is 7-days after receiving the contract documents, but an extended period of time longer than 7-days may be necessary considering the professional financial knowledge and the complexity of financial products.
Ninth, confirmation system as to investment information should also be streamlined under the on-line trade.
Tenth, to secure effectiveness of the rule of suitability, it seems to be necessary to enact a provision which impose administrative or criminal liability to officers and staffs in the financial investment area.
Eleventh, appropriate measures which are comprised of preliminary agreement procedures in the settlement of a dispute and legal grounds as to that agreement should be established.
Twelfth, in reality, it is somewhat impossible for general investors to prove the fact that damage is occurred, it is quite right that the burden of proof be converted to the party who was claimed to cause the damage itself in the respect of protection of investors.
Finally, the writter suggests that the operative word in the terms and conditions which is favorable to the investors and is unfavorable to the financial entities should be enacted a provision.

영어초록

The reason why developed nations in the area of finance has streamlined the consumer protection system in large scale derives from the recognition that this measure is of vital importance not only in protecting the comparatively weak consumers in finance area but also in building a confidence in capital market.
Through this measure, it will be possible to increase the wealth of nation at the end with a concomitant effect of nurturing the potential of financial investment industry.
Under this consideration, the writer has examined the related financial consumer protection clauses of the current law and suggested carefully some alternatives to the seemingly problems or loopholes in the following.
First of all, the writer suggests that an autographed confirmation document system under the current law should be abolished considering the reality that ex-post regulatory measures usually play a role only as a formality.
In this sense, the writer suppose that deposition or recording would rather secure the substantial implementation of explanatory obligation in the law.
Second, the writer suggests that the explanatory obligation of financial investment company can be exempt in case where clients even though they are general investors, positively express their position that they already know the key points of the financial product concerned for the purpose of expediting smoother trade.
Third, it is necessary to specify more definitely the extent to which the explanatory obligation is performed.
Fourth, it will be hopeful that the contract document in which statutory clauses are included, should be delivered to the prospective investors before contract is concluded so that the investors can check the necessary points in deciding whether they do a real deal or not, in the case of Japan.
Fifth, it is necessary to supplement policies to prevent the misrepresentation of Article 49 (3) of the Capital Market and Financial Investment Industry Act (the Act) and Article 54 of Enforcement Ordinance of the Act.
Sixth, the legislative measures which could prevent manipulations of the Act that forbids unsolicited call are taken into account in the light of the Article 36 (6) of Japanese Financial Instrument and Exchange Law.
Seventh, the writer suggests that all solicitation against will should not be forbidden by law but prohibited solicitation against will should be specifically enacted by risks with regard to an appropriate interpretation of Article 49 (4) of the Act and the case of United Kingdom.
Eighth, under the Act the time period which terminates the contract is 7-days after receiving the contract documents, but an extended period of time longer than 7-days may be necessary considering the professional financial knowledge and the complexity of financial products.
Ninth, confirmation system as to investment information should also be streamlined under the on-line trade.
Tenth, to secure effectiveness of the rule of suitability, it seems to be necessary to enact a provision which impose administrative or criminal liability to officers and staffs in the financial investment area.
Eleventh, appropriate measures which are comprised of preliminary agreement procedures in the settlement of a dispute and legal grounds as to that agreement should be established.
Twelfth, in reality, it is somewhat impossible for general investors to prove the fact that damage is occurred, it is quite right that the burden of proof be converted to the party who was claimed to cause the damage itself in the respect of protection of investors.
Finally, the writter suggests that the operative word in the terms and conditions which is favorable to the investors and is unfavorable to the financial entities should be enacted a provision.

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