변액보험의 자본시장법상 ‘투자성’ 쟁점과금융소비자보호법 도입에 따른 관련 쟁점의 해소가능성 연구 - 설명의무와 적합성 원칙을 중심으로 -

It has been debated which regulation, either Insurance Business Law(hereafter. ‘IBL’) or Financial Investment Services and Capital Market Act(hereafter, ‘CMA’), applies to variable insurance(hereafter, ‘VI’) given that it contains investment characteristics, namely, possibility of loss on principal amount, as well as risk-protection ones. This discussion is meaningful and important because it decides which regulation will be applied for effecting the duty of explanation and the suitability rule in the course of soliciting VI products to consumers. This paper explains that both regulations will apply to VI simultaneously with respect to the duty of explanation because it has protection function like traditional insurance and investment one as well. On the other hand, when it comes to the suitability rule, only one specific regulation, namely, either IBL or CMA, is applied to because the IBL explicitly exclude financial investment instruments under the CMA from IBL’s application. Therefore, it is critical how to evaluate VI’s attribute about the possibility of loss on principal amount from the perspective of the CMA. The paper addresses two theories, one is exception-based and the other substance-based one, in an effort to assess whether the VI is financial investment instruments under the CMA or not, and also studies how to be differently applied the duty of explanation and the suitability rule under each theory. The paper points out that the difference of legal effects from violation of the duty of explanation and the suitability rule is much more important issue rather than the difference of application method and practice relating to the two duties of each regulation. Regarding the legal effect against the duty of explanation, the CMA might be more effective and powerful to protect consumer interest than the IBL. In terms of the suitability rule, however, it does not seem to have a meaningful and practical difference between two regulations. Meanwhile, since Financial Consumer Protection Act(hereafter, ‘FCPA’) will come into force from March 2021, market conduct regulations to almost all financial products, including insurance, will be applied by this Act in a consistent and inclusive manner. Hence, the paper reviews whether the above issues related to VI can disappear, and then provisionally concludes being resolved or reduced significantly under the FCPA with respect to the two duties, in spite of the fact that the issue itself regarding the possibility on loss of principal amount in VI is not resolved. This paper also suggests some deeper-dive discussion area and direction in the process of setting sub-regulations of or revising the FCPA in the future to accomplish FCPA’s main purpose, specifically, enhancing consumer protection in an inclusive and consistent way among financial instruments; firstly, transition from classifying all insurance products to ‘protection-type instrument’ to distinguishing ‘investment-type instrument’ from ‘protection- type instrument’ based on the main or pivotal function of insurance product. Secondly, enlargement of applying suitability rule to other insurance products in addition to VI. Thirdly, enhancing the consistency of legal effects on market conduct violations. Lastly, application of the duty of explanation to unsolicited or non-advisable insurance contracts.