금융소비자보호의 공법적 기초 - 보호법리와 조직법적 쟁점을 중심으로 -

Since the US financial crisis, the audit system of the banking sector has changed its goal from micro-prudential management to macro-prudential one along with protection of financial consumers. So far, policies for the protection of financial consumers have mainly been discussed in the private legal scene, leaving the discussions in the public legal domain relatively scarce, where the institutional framework would be provided. Constitutional basis of financial consumer protection lies on the Article 124 for consumer rights, Article 10 for rights for living a human life, Article 23 Clause 1 for assuring property rights, Article 34 Clause 1 for assuring human life and Article 119 Clause 2 for economic coordination. Consumer rights guaranteed by the Constitution are specified in the Article 4 of Basic Consumer Law. The necessity of financial consumer protection is emphasized due to possible asymmetric access to information because of the complexity of financial products. Financial consumers can be classified as depositors, investors and insurance contractors. The means for financial consumer protection by the government authority can be divided into regulation of entry and of business. The regulations of business involve the duty of description and ban on unfair trade and unjust advertisement, differentiating the level of protection depending on subject matters. It can be achieved through comparison of legal profits between public goal of protection and private freedom of business of financial institutions. The important part of tasks for consumer protection is the resolution of disputes between financial corporations and financial consumers. As the current alternative dispute resolution system focuses only on adjustment, it needs to be diversified into arbitration and awarding. In regards to the organization legal aspects on financial consumer protection organization, what matters are the structure of composition of the organization itself and distribution of authorities between the protection organization and other institutions. For the composition of protection body, the first issue is whether the consumer protection organization will be incorporated into the existing authority or established as a separate institution. The second issue is whether the separate organization will hold a representative administration bureau or independent administration bureau. The former depends on the circumstance of each country while some advanced countries in the financial consumer protection such as the US and UK hold the independent system. In the US, however, it is controversial whether the independent system being held by the protection organization in the form of independent regulatory agency is unconstitutional. The overlapping authorities of the Fair Trade Commission and Financial Supervisory Service on consumer protection need to be improved. It is now being handled by coordination of tasks in advance between the two institutions but the issue should be resolved by legislative action. The deposit insurance organization functions as the follow-up protection such as depositor protection, which is closely related to financial consumer protection, while the lender of last resort also plays its part as means of consumer protection. There is a need to secure the channel through which the financial consumer organization and relevant financial authorities can exchange information and share policy options. It corresponds to the lateral governance for the policy goal of consumer protection. With the financial consumer protection act now being under consideration, a public legal consideration is necessary in the legislative process of financial consumer protection act as well as its legal interpretation and research process.