금융소비자보호와 분쟁해결제도 (Finance Consumer Protection and Dispute Resolution System)

서지정보

· 발행기관 : 한양법학회
· 수록지 정보 : 한양법학 / 23권 / 3호 / 511 ~ 545페이지
· 저자명 : 하영태

초록

Since the recent financial crisis, the discussion on how to revise the financial supervision system has been being actively talked about. Most of the subjects in the discussion are about the soundness regulation and the business act regulation both related to the financial supervision system. The core interest of the financial supervision system lays in the finance consumer protection. In order to prevent financial consumers from harms, it is important not only to set details about the precontrol but also to prepare a dispute resolution system which would play a role as the salvation when a harm occurs to the finance consumer afterwards. Under the thesis of the financial disputes mediation, it is necessary to determine a definition and a range of the finance consumer.
So far, the definition of a general consumer has been familiar but, the definition of the finance consumer has been quite new until recently as there has been hardly a clear legal definition to the term. In particular, regarding how to name an investor, whether calling him a final consumer, in other words, whether presentively calling him a consumer related to the self-responsibility judgement rule has been talked about. At present, there is still a difference between many opinions, it is being concluded that the investor is also included to the finance consumer. But still, it needs to make a boundary between his being a professional investor and a general investor.
The finance consumer disputes resolution system in the country is mostly conducted by the financial disputes mediation committee of the Financial Supervisory Service. A relevant matter would be sometimes handed over to the Consumer Protection Board but since an overlapping progress is likely to happen the case is rare. In addition, there are Korea Financial Investment Association and Korea Stock Exchange run by civilians. However, these organizations work on the stock only, they are not participating in the financial dispute mediation.
By looking at a finance disputes system in a foreign country, especially in the United Kingdom, it is found out that they have a comprehensive, extensive civil financial ombudsman system which is assisting the finance consumer protection. In case of Japan running a similar legal system to Korea, they have made a single legislation related to ADR. This indicates quite something to Korea, telling that the present finance disputes system should be revised. Most of the foreign countries with ADR has a similarity that they are operating a civil autonomic organization.
The finance disputes system in Korea appears to have problems such as questions for the usefulness of the disputes mediation system, the effectiveness of relevant mediation, how to separate a supervisory organ from the disputes mediation organization and lastly, ineffectiveness of the system caused by omission of a dispute subject and multiplication of the disputes mediation organization. In order to improve the problems, tentatively named, ‘Finance Consumer Law’ was proposed by Assembly members, which has been denounced for now due to the session closure of the 18th National Assembly. In July 2012, the Financial Services Commission has done a pre-announcement of legislation on tentatively named, the finance consumer protection law and submitted to the National Assembly. The law suggests that the finance consumer protection bureau should be included to the Financial Supervisory Service so that a disputes resolution organization would enjoy an independence. It also says that it needs to have a finance disputes mediation board in the finance consumer protection bureau and let them to work on a disputes mediation.
Moreover, in order to secure the effectiveness of the financial disputes resolutions system, regulations on the stay of procedure system and the one-way conciliation-prepositive principle have been defined but this could bring about a controversy on a violation of the constitution. Nevertheless, the stay of procedure system and the one-way conciliation-prepositive principle should be accepted for the effectiveness of the disputes mediation system and rapid resolution of disputes. A question on the violation of the constitution could be determined separately according to a law applied to each dispute. Recent data proved a necessity of general disputes mediation measures other than measures for lawsuits. This indicates that a discussion on a necessary conciliation-prepositive principle from a view of the positive law is also worth trying.

영어초록

Since the recent financial crisis, the discussion on how to revise the financial supervision system has been being actively talked about. Most of the subjects in the discussion are about the soundness regulation and the business act regulation both related to the financial supervision system. The core interest of the financial supervision system lays in the finance consumer protection. In order to prevent financial consumers from harms, it is important not only to set details about the precontrol but also to prepare a dispute resolution system which would play a role as the salvation when a harm occurs to the finance consumer afterwards. Under the thesis of the financial disputes mediation, it is necessary to determine a definition and a range of the finance consumer.
So far, the definition of a general consumer has been familiar but, the definition of the finance consumer has been quite new until recently as there has been hardly a clear legal definition to the term. In particular, regarding how to name an investor, whether calling him a final consumer, in other words, whether presentively calling him a consumer related to the self-responsibility judgement rule has been talked about. At present, there is still a difference between many opinions, it is being concluded that the investor is also included to the finance consumer. But still, it needs to make a boundary between his being a professional investor and a general investor.
The finance consumer disputes resolution system in the country is mostly conducted by the financial disputes mediation committee of the Financial Supervisory Service. A relevant matter would be sometimes handed over to the Consumer Protection Board but since an overlapping progress is likely to happen the case is rare. In addition, there are Korea Financial Investment Association and Korea Stock Exchange run by civilians. However, these organizations work on the stock only, they are not participating in the financial dispute mediation.
By looking at a finance disputes system in a foreign country, especially in the United Kingdom, it is found out that they have a comprehensive, extensive civil financial ombudsman system which is assisting the finance consumer protection. In case of Japan running a similar legal system to Korea, they have made a single legislation related to ADR. This indicates quite something to Korea, telling that the present finance disputes system should be revised. Most of the foreign countries with ADR has a similarity that they are operating a civil autonomic organization.
The finance disputes system in Korea appears to have problems such as questions for the usefulness of the disputes mediation system, the effectiveness of relevant mediation, how to separate a supervisory organ from the disputes mediation organization and lastly, ineffectiveness of the system caused by omission of a dispute subject and multiplication of the disputes mediation organization. In order to improve the problems, tentatively named, ‘Finance Consumer Law’ was proposed by Assembly members, which has been denounced for now due to the session closure of the 18th National Assembly. In July 2012, the Financial Services Commission has done a pre-announcement of legislation on tentatively named, the finance consumer protection law and submitted to the National Assembly. The law suggests that the finance consumer protection bureau should be included to the Financial Supervisory Service so that a disputes resolution organization would enjoy an independence. It also says that it needs to have a finance disputes mediation board in the finance consumer protection bureau and let them to work on a disputes mediation.
Moreover, in order to secure the effectiveness of the financial disputes resolutions system, regulations on the stay of procedure system and the one-way conciliation-prepositive principle have been defined but this could bring about a controversy on a violation of the constitution. Nevertheless, the stay of procedure system and the one-way conciliation-prepositive principle should be accepted for the effectiveness of the disputes mediation system and rapid resolution of disputes. A question on the violation of the constitution could be determined separately according to a law applied to each dispute. Recent data proved a necessity of general disputes mediation measures other than measures for lawsuits. This indicates that a discussion on a necessary conciliation-prepositive principle from a view of the positive law is also worth trying.

참고자료

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