금융소비자보호 기본법(안)의 위법계약 해지권 소고(小考)

Under the current Korean Civil Codes’s contract law regime, even when the financial products are sold not in compliance with the financial regulations, the consumers who bought such financial products(hereinafter, the “Financial Consumer”) can not avoid the binding effect of such contract. As a result, even if the Financial Consumers suffer the damages due to the financial institutions’ violating the financial regulations that are provided to protect the Financial Consumers, such Financial Consumers have no choice but to pursue the routes for tort liability or the defect in consummating the contract such as ‘fraud’ by the financial institutions. Put anther way, there is no way to get out of the binding effect of the contract unless the Financial Consumers prove that there was a tourt act such as a fraud. This has been pointed out as problematic given the express existence of the unbalance in the capability and expertise between the Financial Consumer and the financial institution. In this background, the Financial Services Commission prepared the draft bill making the prior announcement of legislation of the Basic Act for Financial Consumer Protection(hereinafter, the “Draft Bill”). The Draft Bill, among others, provided the right of termination by the Finance Consumers when there is an incomplete sales of financial products by the financial institution(hereinafter, the “Termination Right of the Financial Consumer” or “TROFIC”). In this regard, this article analyses the contents, significance and the conditions of exercising the TROFIC, the characteristics and the implications thereof which will take in the entire civil law contract system. From the contract law perspective, the TROFIC is significant because it in some sense is creating the duty to provide the information and the terminating power for the events that occurred prior to the signing the contracts, which might not look familiar with the traditional contract law concept. However, we should note that the fairness between the parties to the contract is as important as the consumer protection and there must be proper balance. Sufficient Compensation should be made so that the TROFIC can be successfully settled and achieve the desired outcome.