자본시장법상 신의성실공정의무에 관한 고찰

In Korea’s Financial Investment Services and Capital Markets Act (Capital Markets Act, 2009), Article 37 stipulates that financial investment services shall fulfill the duty of good faith and fairness, which is the enactment of the first of the international conduct of business principles that IOSCO (The International Organization of Securities Commissions) called upon securities servicing providers to recognize and thus has been adopted throughout the world. From this perspective, one can safely say that the significance of the law lies in that the supervision and regulation of its implementation regarding this duty may be executed more effectively and harmoniously by promoting international cooperation. The basic concept of the duty of good faith and fairness recommended by IOSCO is borrowed from the two theories that were further established by the rulings that Hughes Tool Company received in 1943 and 1949. Of the two, the beneficiary theory has recently drawn more attention, especially since the Chiarella and Dirks rulings on insider trading. This study reviews the legal principles relating to the duty of good faith and fairness that is called upon for securities servicing providers. Chapter II looks at the historical background and basic legal principles. Chapter III examines related legislation of other countries. Chapter IV discusses what relationship it has with other duties adopted by the law, and Chapter V lists its specific functions. The study concludes that, unlike the United States, Korea may face difficulties in adopting and developing its own legal principles because of the legal principles that the country now embraces. It also suggests that these difficulties may come from discrepancies in implementation and interpretation between nations with a common law system and with a legislative system and from the differences in historical experiences among different countries. The author adds that to enable the duty of good faith and fairness in Korea’s Capital Markets Act, 2009 perform its function effectively and thus prevent it from becoming obsolete, more discussions are needed in the academic field.