금융회사 영업행위 규제의 문제점과 개선 방안 (Legal Review of Regulations on Financial Companies' Conducts of Business in Korea)

서지정보

· 발행기관 : 성균관대학교 법학연구원
· 수록지 정보 : 성균관법학 / 23권 / 1호 / 183 ~ 232페이지
· 저자명 : 고동원, 노태석

초록

Financial consumer protection has become an important issue since the global financial crisis in 2008. Other financially advanced countries, such as the United States and the United Kingdom, have taken certain measures or plan to take actions to strengthen the protection of financial consumers. For example, in July 2010, the United States enacted the "Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010," which includes, among others, the provision of establishing a separate new agency in charge of consumer protection, the 'Consumer Financial Protection Bureau' (CFPB), and further, in July 2010, the United Kingdom government also proposed to create a new agency, the 'Financial Conduct Authority' (FCA), being responsible for regulating business conducts of credit institutions. Korea is no exception to this global trend. The Korean government recently proposed to enact a consolidated "Financial Consumer Protection Act," which will reinforce consumer protection. Financial companies' conducts of business need to be regulated in that financial consumers have weak position in terms of access to financial information because of 'information asymmetry.' However, excessive regulation on business conducts of financial companies my also cause inefficiency of their operations; so it is necessary to have a balance in regulating business conducts. This article is intended to analyze the current laws and regulations of business conducts of financial companies in Korea, such as banks, financial investment business companies (such as securities firms and asset management companies), and insurance companies, prescribed in the relevant laws and regulations, such as the Bank Act, the Capital Market and Financial Investment Business Act, the Insurance Business Act, the Standard Agreement Regulation Act, and the Representation and Advertisement Act. In addition, this article reviews the business conduct regulations of the United Kingdom and Japan as foreign countries' examples to seek a comparative analysis. In particular, this article focuses on the analysis on the following five issues on business conduct regulations, among others: advertisement regulations, suitability principle, explanation duty, standard agreement regulation, and cooling-off rights.
Based on such analysis, this article finds some problems on the current relevant regulations in the relevant laws and regulations, and so suggests some improvements. First, two separate regulatory authorities (i.e., the Financial Services Commission (FSC) and the Fair Trade Commission (FTC)) are regulating the standard agreement prepared by financial institutions and the advertisements by such financial companies, so that it causes 'regulatory duplicate' which gives a burden to regulated financial companies and arouses regulatory inefficiency as well. So, this article argues that such authority should be given to the FSC, rather than the FTC, in that the FSC has more specialties in the area of financial transactions. Second, the Bank Act lacks the express provisions of suitability principle, explanation duty, and cooling-off rights, which may lead to weak protection of bank consumers. So, this article proposes that such provisions should be expressly added in the Bank Act. Third, to encourage financial companies to comply with the suitability principle prescribed in the relevant laws, this article suggests that administrative enforcement measures should be introduced in the relevant laws in that the violation of suitability principle itself does not guarantee the recovery of damages from involved financial companies.
Finally, in the long run, it may be necessary to enact the unified financial consumer law in order to solve those problems as mentioned above and at the same time to protect financial consumers more efficiently.

영어초록

Financial consumer protection has become an important issue since the global financial crisis in 2008. Other financially advanced countries, such as the United States and the United Kingdom, have taken certain measures or plan to take actions to strengthen the protection of financial consumers. For example, in July 2010, the United States enacted the "Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010," which includes, among others, the provision of establishing a separate new agency in charge of consumer protection, the 'Consumer Financial Protection Bureau' (CFPB), and further, in July 2010, the United Kingdom government also proposed to create a new agency, the 'Financial Conduct Authority' (FCA), being responsible for regulating business conducts of credit institutions. Korea is no exception to this global trend. The Korean government recently proposed to enact a consolidated "Financial Consumer Protection Act," which will reinforce consumer protection. Financial companies' conducts of business need to be regulated in that financial consumers have weak position in terms of access to financial information because of 'information asymmetry.' However, excessive regulation on business conducts of financial companies my also cause inefficiency of their operations; so it is necessary to have a balance in regulating business conducts. This article is intended to analyze the current laws and regulations of business conducts of financial companies in Korea, such as banks, financial investment business companies (such as securities firms and asset management companies), and insurance companies, prescribed in the relevant laws and regulations, such as the Bank Act, the Capital Market and Financial Investment Business Act, the Insurance Business Act, the Standard Agreement Regulation Act, and the Representation and Advertisement Act. In addition, this article reviews the business conduct regulations of the United Kingdom and Japan as foreign countries' examples to seek a comparative analysis. In particular, this article focuses on the analysis on the following five issues on business conduct regulations, among others: advertisement regulations, suitability principle, explanation duty, standard agreement regulation, and cooling-off rights.
Based on such analysis, this article finds some problems on the current relevant regulations in the relevant laws and regulations, and so suggests some improvements. First, two separate regulatory authorities (i.e., the Financial Services Commission (FSC) and the Fair Trade Commission (FTC)) are regulating the standard agreement prepared by financial institutions and the advertisements by such financial companies, so that it causes 'regulatory duplicate' which gives a burden to regulated financial companies and arouses regulatory inefficiency as well. So, this article argues that such authority should be given to the FSC, rather than the FTC, in that the FSC has more specialties in the area of financial transactions. Second, the Bank Act lacks the express provisions of suitability principle, explanation duty, and cooling-off rights, which may lead to weak protection of bank consumers. So, this article proposes that such provisions should be expressly added in the Bank Act. Third, to encourage financial companies to comply with the suitability principle prescribed in the relevant laws, this article suggests that administrative enforcement measures should be introduced in the relevant laws in that the violation of suitability principle itself does not guarantee the recovery of damages from involved financial companies.
Finally, in the long run, it may be necessary to enact the unified financial consumer law in order to solve those problems as mentioned above and at the same time to protect financial consumers more efficiently.

참고자료

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