투자자피해구제기금의 비교법적 검토 및 시사점 － 제도설계를 위한 試論 －

There are many institutional methods to increase investor's confidence in the capital market including conduct regulation and prudential regulation of financial investment providers. Among them, investor compensation fund is a determinant of investor confidence in the capital market. If investors are protected adequately, they can have confidence in the market and this leads to grow financial market. However, now the confidence of investors in capital market in Korea is very low and there is doubts as to the ability of protection of investors. This has arisen due to the inability of investor compensation fund in Korea. The investors who suffer as a result of unfair sales practices of some investment providers could not compensate their damages easily. To be compensated, they should go to the court. In other hands, they can use administrative ADR(Dispute Resolution Committee) managed by Financial Supervisory Service. However decisions led by Dispute Resolution Committee has no finality power. If the investment provider company would not follow the Dispute Resolution Committee's decision, there is no way but go to the court for harmed investors. In my view, proper protection of investors requires compensation fund and reduces the exposure of investors to losses caused by unfair sales. Effective oversight by regulators through active on-site and off-site supervision promotes regulatory requirements being met in practice. However, regulation, no matter how pervasive, cannot prevent totally eliminate the risk of lossess to investors especially when the intermediary fails. Compensation fund is intended to fill this gap in investor protection that the financial regulatory requirements cannot eliminate. The primary purpose of compensation fund it to maintain investor confidence in the marketplace by compensating investors from the damages by violated intermediaries. Some critics argue this kind of compensation fund is not useful in the reason that in Korea all investor's securities and cash under the adminstration of investment firms are required to be held at a third party custodian that is a regulated as a financial institution. In addition, some argue against adopting compensation fund on the assumption that the cost would be outweighed by the benefits. It is true that operating a compensation fund will entail certain costs for administration and it is not easy to design to satisfy all considerations and establish. However, If investor confidence were lost, the capital market could not function. In considering this aim and practical difficulties, it is useful to undertake gradual approach to establish the investor compensation fund. As a first step, the investor compensation fund compensate to an investor who suffer a loss arising from bad investment advice, poor investment management, misrepresentation or fraud. from the money collected by financial penalty. As a second step, where a claimant is compensated under the investor compensation fund, its rights against the firm with which it dealt are assigned to compensation fund which can pursue recovery.