ELW 시장의 공정성과 금융기관의 고객에 대한 신의성실 의무

In the time since its launch in 2005, the domestic equity-linked warrants (ELW) market in Korea has grown to become one of Asia’s largest exchange markets. In this time, however, the issue of unfairness between the treatment of major and preferred clients, or scalpers, and regular clients on the part of liquidity providers (LP) has become an increasing problem. This issue relates particularly to a lack of transparency in the issuance to preferred clients of direct market access (DMA) systems which allow faster access to the market, and thus an advantage over those with regular access. While DMAs themselves could be seen to be a technological advantage in relation to the ELW market, their general availability and accessibility arguably mean that the systems themselves are not unfair, it is their exclusive and discreet issuance to some clients and not others, by LPs, that is of concern. Some have criticized the constitutionality of The Financial Investment Services and Capital Market Act (FISCMA) §178 (1)-1, which reads: “No one shall conduct any activity … using an unfair device, contrivance or skill.”, noting the vagueness of the provision. This paper, however, supports the constitutionality of the clause on the basis that LPs are specialists in the ELW market and thus must be entirely aware of what could be said to comprise an unfair device, contrivance, or skill. Any dishonesty and a lack of openness about the provision or non-provision of DMA, along with an explanation of their benefits could be representative of a breach of trust between LPs and clients. Thus, this paper concludes that LPs should be held accountable for the unfair opportunities for advantage and profit given to DMA users, over non-DMA users. That is to say, the fiduciary duties and responsibilities of LPs to their clients mean that they should be given equal opportunities and access to DMAs.