자본시장법상 영업행위 규칙의 사법(私法)적 의의

With coming of the tenth anniversary of the enactment, this article intends to review whether the business conduct regulation under the Financial Services and Capital Markets Act (“Act” hereunder) is functioning effectively for the market players. As is well known, the article 37 of the Act sets forth duty of good faith and duty to put client's interests first as a basic principle for every financial service provider under the Act. Especially, Korean Supreme Court recently issued a decision regarding sales and trading of Equity-Linked-Securities. in which the duty of securities company to protect client’s interests ahead of its own ones is referred. However, there is no guideline or agreed-upon principles about the details of such duty. This article states that the contents of such duty vary depending on the characteristics of legal relationship between the financial company and the client, which is proven by the precedents under the U.K. law and Australian law. In addition, this article analyzes the business conduct regulation of Investment Advisor, Asset Management Company and Investment Trustee under the Act. For such types of financial companies which were considered to be “Fiduciary” under common law jurisdiction, the Act also provides additional conduct regulation of “duty of care” and “duty of loyalty”. Korean legal system was reluctant to accept the concept of fiduciary due to its nature of continental law. Thus, it lead to some confusion of market actors, regulator authorities and the judicial branch as well. This article would clarify the meaning of the duty of loyalty from the perspective of fiduciary proscriptive duty.