금융소비자 보호와 자본시장법의 과제

Protection of Consumers is of serious concern in the financial markets since they are prone to information asymmetries problem. As financial products are becoming more complex and information technology develops, the level of sophistication of financial service providers and that of consumers may be diverging everyday. As such, the need for protecting financial consumers is becoming more apparent, particularly as the current legal framework for the protection of financial consumers has not fully resolved this information imbalance between financial institutions and consumers. Traditionally, the Securities and Exchange Act is based on the concept of the reasonable investors and it encourages investors to be informed as to regulations pertaining to the conduct of securities companies, including the duty to explain, the principle of suitability, and know-your- customer-rule and so on. With technological innovation, investors have direct and immediate access to financial products around the world. Advanced in computer and communications technologies such as the Internet give greater chance to the investors such as increased access to goods and services and opportunities to comparison shop. However, Financial consumers can make poor financial decisions, driven by any number of factors, including inappropriate or illegal business conduct of investment services provider. Especially, Capital Market and Investment Service Provider Act will be in force in Feb. 2009. Taking these realities into account, the financial system and related regulatory mechanisms should provide sufficient protective measures for the investors based on the concept of financial consumers. In addition, the percentage of older consumers is becoming higher in the financial service industry. However, disproportionate with these trends, products and services are increasingly becoming complex. These facts reinforce the need for financial consumers to have the best information and tools available so they can manage and use their financial resources effectively. The Financial Regulation should financial consumers make informed financial decisions. There is an urgent need to upgrade and improve important financial consumer aids in line with changes in the marketplace. The most basic protective measures for the financial consumers is code of conduct regulation. Financial Consumers need to know that there are basic, enforceable standards for transacting business, which require provision of information and ensuring suitability and prohibiting mis-selling. Financial Consumers make their choices based on impartial, clear and understandable information. However, the new Act is not meeting these urgent tasks. This paper questions and explores these issues in the following order. Part I introduces the relationship between the consumer and financial industry from the legal perspective and explains why financial consumers' protection is necessary and perceived as an especially urgent part of financial regulation. Part II describes protective measures adopted in the process of pre-contract in the advanced foreign countries such as United States, EU, UK in detail. Part III assesses the modified financial consumer protective measures adopted in the new Act. Although it can be judged that some consumer protective measures are improved, it is desirable to reflect changes in the financial environment and status of the financial consumers so that the new Act should provide more improved protective measures to enable investors to make reasonable investment decisions and ensure an appropriate investment. It should consider reinforcing provision of clear and good qualities of information related investments and trading to investors. the adoption of appropriateness test, the supports for the activating use of financial ADR, prohibition of mis-selling financial investment products broadly and conducting senior-focused implementation of education program, surveillance and compliance reviews.