금융투자업자의 적합성 원칙 준수의무와 민사책임- 일본 최고재판소 2005. 7. 14. 판결(最高裁 平成17年 7月 14日)을 중심으로 - (The Duty of Financial Investment Business Entities to Comply the Suitability Rules for Recommending Financial Investment Products and the Civil Liability)

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초록

In the decision of the Japanese Supreme Court (Saiko Saibansho) of 14 July 2005, the Court held that a breach of the suitability principle of the Securities Exchange Act of Japan (cf. Article 40(1) of the Financial Instrument and Exchange Act now in force) is a tortious act. In Court's views, when representatives of securities corporations have engaged in material breaches of the principle of suitability in recommending and having clients engage in securities trades, such as by the positive recommendation of trades that are clearly accompanied by excessive risk, contrary to the client’s wishes and circumstances, it is appropriate to view those acts as being illegal under the law on tort law as well.
Under the Capital Market and Financial Investment Industry Act of Korea, the violation of suitability rule could constitute a tort liability. The suitability principle in Article 46 of the Act provides that no financial investment business entity shall recommend an ordinary investor to make an investment, if the investment is considered unsuitable for the investor in light of the investment purpose, status of property, experience in investment, etc. of the investor. That is, financial investment business entities must act in good faith, and may not knowingly recommend bad investments. But the issues are (1) what the suitability rule is the criteria for its definition and (2) whether a breach of the rule could be a tortious act.
This article suggests that the suitability rule of the Act must be interpreted by the narrow sense. Also, this article says that a breach of the suitability principle of the Act may be in violation of torts law. A financial investment business entity shall be liable for the damages inflicted upon ordinary investors by its violation of the suitability principle under tort law. In order to make the application of suitability principle, however, it is necessary to consider reasonable and proper standards of judgment for its illegality.

영어초록

In the decision of the Japanese Supreme Court (Saiko Saibansho) of 14 July 2005, the Court held that a breach of the suitability principle of the Securities Exchange Act of Japan (cf. Article 40(1) of the Financial Instrument and Exchange Act now in force) is a tortious act. In Court's views, when representatives of securities corporations have engaged in material breaches of the principle of suitability in recommending and having clients engage in securities trades, such as by the positive recommendation of trades that are clearly accompanied by excessive risk, contrary to the client’s wishes and circumstances, it is appropriate to view those acts as being illegal under the law on tort law as well.
Under the Capital Market and Financial Investment Industry Act of Korea, the violation of suitability rule could constitute a tort liability. The suitability principle in Article 46 of the Act provides that no financial investment business entity shall recommend an ordinary investor to make an investment, if the investment is considered unsuitable for the investor in light of the investment purpose, status of property, experience in investment, etc. of the investor. That is, financial investment business entities must act in good faith, and may not knowingly recommend bad investments. But the issues are (1) what the suitability rule is the criteria for its definition and (2) whether a breach of the rule could be a tortious act.
This article suggests that the suitability rule of the Act must be interpreted by the narrow sense. Also, this article says that a breach of the suitability principle of the Act may be in violation of torts law. A financial investment business entity shall be liable for the damages inflicted upon ordinary investors by its violation of the suitability principle under tort law. In order to make the application of suitability principle, however, it is necessary to consider reasonable and proper standards of judgment for its illegality.

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