자본시장법상 온라인소액투자중개업자의 법적 지위에 관한 해석론상 문제점

As of Jan. 25, 2016, the amendments of Financial Investment Services and Capital Markets Act (hereinafter, the “FISCMA”) and its Presidential Decree had taken effect with introducing crowdfunding. Until now, 13 Crowdfunding Platforms (Online Small Investment Intermediary) has been registered with the Financial Supervisory Service. Crowdfunding Platform is stipulated to be a investment broker under the FISCMA, and allowed to perform brokerage, underwriting, solicitation, etc. in accordance with the presidential Decree of the FISCMA, but, in reality, other provisions of the FISCMA prohibit Crowdfunding Platforms from doing the above works except for the simple agency business of offer and/or accept of the online small investment. Thus, the role of Crowdfunding Platforms is restrained to simple proxy business, rather than investment brokerage business. In addition, Crowdfunding Platforms may entrust a third party to perform the certification business regarding the facts disclosed by the issuer, which should have been performed by Crowdfunding Platforms, but, the FISCMA requires the trustee to be registered as Crowdfunding Platform as well. Such certification business is supposed to be performed through checking the documents submitted by the issuer, which is never meant to be a complicated or hard work. Thus, the requirement of trsutee’s eligibility is unnecessary. Considering that the role of Crowdfunding Platform is simple agency business, the registration requirement of Crowdfunding Platform shall be much lower than other financial investment business entities under the FISCMA, and current regulation on Crowdfunding Platform is too burdensome.