자본시장통합법상 과당매매규제의 개선에 관한 제언

The National Assembly of Korea has passed the Capital Market and Financial Investment Services Act (hereinafter, the Act) on July third, 2007. The Act aims at fully consolidating prior securities-related Acts, such as the Securities Exchange Act, the Futures Trading Act, the Collective Investment Scheme Act, the Trust Business Act, the Merchant Banking Act and the Money Brokerage Act. The author strongly supports the Act and expects some prospective investment bankers in Korea similar to the Goldman Sachs in the U.S. The Act divides the traditional securities-related business to six sectors, such as dealing, brokerage, asset management, investment adviser, wrap and trust. If an investment banker is allowed to conduct all of these businesses, it may enjoy a lot of advantages subject to the either scale or scope economy, thereby increasing the overall welfare of financial investors. However, financial investors may encounter some disadvantages, in particular conflict of interest problems, which frequently occur between financial firms and financial investors or among financial investors themselves. Of course, the conflict of interest problems are not new ones created by the Act, because most investors have also been exposed to same problems under the current securities-related Acts. However, the Act should contain wise solutions to deal with these problems. Otherwise, the Act may face several critiques because these problems have not been seriously tested during the legislation procedures. The author feels a kind of duty to supplement the Act, thereby protecting financial consumers and strengthening the competitiveness of the financial industry in the end. This paper focuses on churning among various conflict of interest transactions, analyzes lots of issues under the current Securities Exchange Act and cases, and suggests the prompt reform of relevant provisions under the Act. Key suggestions include the supplement of new provision on churning, the clarification of several elements of churning, and the measure of damages based on modified out-of-pocket theory. Part two deeply analyses the current scheme of churning and develops main problems. Part three considers the precious experiences of the United States and focuses on key resolutions to solve the problems in churning cases. Part four deals with some remarkable provisions under the Act and suggests what should be reformed at this time. Part five is the conclusion part of this paper.