우리나라 금융소비자보호법의 체계 및 주요 내용에 관한 연구

At the same time it magnified the necessity of tightening supervision and oversight of avaricious financial institutions, the global financial crisis in 2008 also highlighted the importance of protecting financial consumers. Accordingly, advanced countries have taken measures to intensify the protection of financial consumers. The United States, for example, established the Consumer Financial Protection Bureau (CFPB) under the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010. The United Kingdom founded the Financial Conduct Authority (FCA) under the Financial Services Act of 2012. Lately, Korea has witnessed a series of supervisory failures, including the incident involving the knock-in knock-out (KIKO) currency option contract in 2008 and the insolvency of many mutual savings banks in 2011. Some of the contributing factors included the fact that financial institutions focused more on selling their products than on protecting the rights of unsophisticated financial consumers, and the challenges of systematically protecting consumers in the face of consumer protection regulations that are disparate across different financial sectors and spread across individual statutes. In light of this, legislative bills proposed by both the government and lawmakers on financial consumer protection have been proposed since 2011, but they were automatically abrogated without debate in the 19th National Assembly. Resuming its pursuit of the enactment of consumer protection laws in the 20th National Assembly, the government proposed a legislative bill on the Act for the Protection of Financial Consumers (hereinafter the “government bill”) on May 23, 2017. The two bills sponsored by lawmakers in March and April, 2017, are also pending at the National Assembly along with the government bill. Part 2 of this article deals with the legal systems on financial consumer protection in, inter alia, the U.S., U.K., Japan, and Australia. Part 3 delineates the structure of Korean financial consumer protection laws, which is followed by Part 4 reviewing their main contents. Part 5 reviews the main contents of financial consumer protection bills, centering on the government bill. Part 6 concludes. Many implications for Korean system can be drawn from the examples of other countries, including the following: (a) the U.S., which newly established the CFPB, an independent organization, exclusively in charge of consumer protection to ensure an intensified protection of financial consumers following the global financial crisis; (b) U.K., which abrogated the Financial Services Authority (FSA) and separated consumer protection supervision from prudential supervision; (c) Australia, which has a tripartite system of financial supervision comprising the Australian Prudential Regulatory Authority (APRA) in charge of prudential regulation, the Australian Securities and Investments Commission (ASIC) in charge of sales co+nduct and consumer protection, and the Reserve Bank of Australia (RBA) in charge of the overall stability of the financial system, including the establishment of currency credit policy; and (d) Japan, which has instituted the financial product sales statute as a general law aimed at protecting financial consumers, in addition to the individual financial industry laws according to each financial transactional form and business type of credit offering vehicle. Korean financial consumer protection laws can be classified into three groups, namely, the Constitution of the Republic of Korea, the Framework Act on Consumers, and other individual laws. Other individual laws can be further divided into two subgroups: (a) general financial laws, which are generally applicable regardless of the type of financial business, including the Depositor Protection Act, the Act on the Regulation of Terms and Conditions, and the Act on the Establishment, etc. of the Financial Services Commission; and (b) financial business laws, which are applicable to only specific financial business type, including the Banking Act, the Insurance Business Act, and the Financial Investment Services and Capital Markets Act. Article 124 of the Constitution of the Republic of Korea stipulates, “The State shall guarantee the consumer protection movement intended to encourage sound consumption activities and improvement in the quality of products under the conditions as prescribed by Act.” As the constitutional guarantee of consumer protection movement can be understood to be premised on consumer rights, this provision providing for consumer protection movement can be deemed the source of the guarantee of consumer rights. With a view to promoting consumer rights and interests, the Framework Act on Consumers prescribes consumers’ rights and duties, the duties of the State, local governments, and enterprisers, the role of consumer organizations, and the relationship between consumers and enterprisers in free market economy, while also laying out the basic matters necessary for comprehensively facilitating consumer policies. Article 3 of the Framework Act on Consumers stipulates, “Except when there are specific provisions in any other laws on consumer rights and interests, this Act shall apply.” As such, said Act features the characteristics of lex generalis in relation to other consumer protection laws. The government bill: (a) reclassifies and systematizes the elements of financial instruments and sales conduct from the consumer’s perspective; (b) introduces the “same function same regulation” system; and (c) thus, establishes a dense regulatory system capable of filtering out any incomplete contractual elements in the sales process of any type of financial product. The bill features, inter alia, the following main contents: (i) more scrupulous prior disclosure to financial consumers; (ii) regulation of financial product sales conduct; (iii) ex ante prevention of any excessive burden on financial consumers; (iv) systematic protection of financial consumers; and (v) reinforced ex post remedy of the rights of financial consumers. Meanwhile, essentially upholding the status quo, the government bill designates the Financial Services Commission (FSC) as the party responsible for financial consumer policy-making, and establishes the Financial Consumer Policy Committee as the deliberative and decision-making organ under its auspices. However, it is worth reconsidering the government bill seeking to uphold the current functions of the FSC, which is in charge of domestic economic policies, financial supervision, and financial consumer protection policies, in view of the following: (i) conflict of interest issues may well arise should a single supervisory organ regulates both prudential supervision and consumer protection; (ii) prudential regulation of financial institutions and consumer protection regulation are separated in countries like the U.K. and Australia; (iii) financial policy-making and financial supervision differ in nature and there may well arise cases in which the purposes of their functions clash with each other; and (iv) separating domestic and international financial policies can make it difficult to maintain consistency in the overall financial policy architecture.