자본시장법상 설명의무의 적용과 손해배상책임

The Capital Market and Financial Investment Business Act set out to achieve control and investment efficiency by reinforcing investor protection for ordinary investors and minimizing unnecessary regulations for professional investors. According to that purport, the Act imposes explanatory obligation of financial investment business entity only to ordinary investors. However, there should be more detailed discussions about the specific objects of its application. The study provided opinions on interpretations as to whether financial investment business entity could be exempted from explanatory obligation when ordinary investors refused its explanation and whether the explanatory obligation of financial investment business entity could still be recognized as obligation for client protection. Even if ordinary investors refuse the explanation of financial investment business entity, its explanatory obligation cannot be exempted. Armed with investment professionalism and risk taking capacity, professional investors cannot be subject to the same obligation for client protection as ordinary investors. The Capital Market and Financial Investment Business Act stipulates that financial investment business entity should be liable for damages resulting from the violation of explanatory obligation to alleviate the burden of proof among ordinary investors when there is damage because of the violation of explanatory obligation on the part of financial investment business entity. The provision presumes causal relations between damage amount and damage occurrence, contributing to the stronger protection of ordinary investors' rights. Reinforcing the protection of ordinary investors and encouraging responsible investments among professional investors through the clear interpretations of explanatory obligation are critical for sound development between financial investment business entity and investors in the rapidly changing capital market.