투자중개업자의 법적 지위 ―집합투자증권 계약의 취소 및 부당이득반환청구의 상대방―

In the past, in the case of incomplete sales of funds, that is, collective investment securities, investors filed a compensation suit against financial investment companies for default or illegal activities. However, recently, sales companies such as investment brokers have been requested for cancellation and return of unfair gains due to fraud or error. This is a matter related to the legal status of an investment broker, and in the past, it was mainly discussed about the legal status of the selling company, that is, whether the investor can claim redemption money against the selling company. The Supreme Court’s ruling is changing before and after the revision of the Securities Investment Trust Business Act in 1998, and it will introduce its existing views, and express its opinion that the revised law and the revised ruling did not follow the majority theory of agency. On the other hand, existing academia has discussed the legal status of investment brokers, focusing on laws and theories related to the capital market, and from the investor’s perspective, the legal status of investment brokers is closely related to judicial issues starting from who the investor’s contractual counterparty is. In other words, it is logically reasonable to follow the theory of agent or broker when viewing a collective investment business as a contracting party, and to follow the theory of consignment sales and independent parties when viewing an investment broker as a contracting party. Therefore, if only the contracting party is confirmed, the legal status of the investment broker will be resolved to some extent. In addition, it will be said that the counterparty to the cancellation of the contract is also confirmed. According to the general principle of judicial confirmation of contracting parties, it seems that an investment broker is a contracting party to a collective investment transaction contract, and it is reasonable to regard an investment broker as a quasi-consignment seller under the Capital Markets Act and the Financial Consumer Protection Act. In the end, it seems that the contracting parties determined in accordance with the civil principles do not conflict with the provisions of the Capital Markets Act and the Financial Consumer Protection Act.