유럽연합(EU) 「제2차 금융상품시장지침」(MiFID Ⅱ)의 규제 영향과 시사점

This article is intended to review the “Markets in Financial Instruments Directive” (the “MiFID II”) and the associated “Markets in Financial Instruments Regulation” (the “MiFIR”), both of which were enacted by the European Union in 2014 and took into effect in January 2018. The MiFID II and the MiFIR, reflecting the lessons from the 2008 global financial crisis, seek to maintain the sound and robust financial and capital markets in the region of the European Union and to strengthen the protection of investors in capital markets. Based on the review of the MiFID II and the MiFIR, this article suggests some improvements in the Korean financial markets. First, the protection for investors should be reinforced by introducing the following new schemes: the regulator’s intervention power to prohibit or restrict investment firms’ selling or distributing financial instruments which might inflict damages on investors; prohibition of investment firm’s paying a fee or charge to the third party, such as financial distributors or financial product manufacturers and reinforcement of disclosure of information about financial products to investors. Second, the legal scheme for regulating high frequency algorithm trading which grows fast recently should be set up in the Financial Services and Capital Market Act by providing duties of investment firms’ risk management system and of their reporting the details of the trading to a supervisor. Third, the introduction of an organized trading facility, a new trading venue, the MiFID II has introduced, needs to be reviewed. Fourth, transparency requirements for the trading in trading venues need to be strengthened by making public the details of the trading and reporting them to a supervisor. Lastly, position limits on the size of a net position of commodity derivatives traded on trading venues need to be further discussed as the size expands in the future, in order to prevent speculation investment on underlying commodity.