독일에서의 투자자보호 - 자본시장지침(MiFID)의 영향을 중심으로

The MiFID, so called “the bible or constitution for the european capital market” which as the cornerstone of the European Commission's Financial Service Action Plan(FSAP) replaced the ISD(Investment Services Directive) was enacted on 21 April 2004 and implemented into national laws on 1 November 2007 in the EU. The aim of the MiFID is to encourage the creation of fair, transparent, efficient and integrated capital markets and to ensure adequate investor protection in the EU. The implementation of the MiFID through the FRUG(MiFID Implementing Act) has brought many new and detailed regulations into the german WpHG(German Securities Exchange Act). The WpHG defines almost all tradable financial products as financial instruments with exclusion of beneficiary certificates of closed fonds which are issued by limited partnerships or civil law partnerships. So both commodity and financial derivatives and climate or weather, inflation and electricity derivatives are covered by the WpHG. Following the MiFID the WpHG distinguishes between investment services and activities(e.g. investment advice, portfolio management) and ancillary services(e.g. finance analysis, marketing communication, generic advice), but if a investment firm performs the former together with the latter, it is subject to the WpHG in respect of the latter. Due to the implementation of the MiFID, especially in the field of the investor protection, following aspects are worthy of notice. The WpHG requires investment firms to classify clients as retail clients, professional clients or eligible counterparties in order to differentiate the level of protection among three type of clients(Client Classification). The least protection is provided to eligible counterparties, the highest level of protection to retail clients, the midium level of protection to the professional clients. Clear procedure must take place to classify clients and to test the suitability of each type of financial instruments to them. Namely, investment advice and portfolio management must be suitable to the investor's level of knowledge and experience, risk taking and investments objectives(Suitability Test). Other financial services must be so appropriate that clients must be able to understand their risks(Appropriateness Test). The WpHG burdens the investment firms with the duty to provide necessary informations for the investment decision of the clients(Duty of Information). Informations provided to the clients must be fair, clear and not misleading. The WpHG prohibits in principle inducements in relation to investments services. Exceptionally allowed inducements must be on the behalf of clients and fully and understandably disclosed to them. The WpHG requires investment firms to have comprehensive policy to identify, manage and disclosure conflicts of interest. According to the regulations of the WpHG investment firms have to take all reasonable measures to obtain the best possible result in the execution of an order for a client(Best Execution). The regulations on best execution always come into play when clients include no specific instructions in their orders.