미등록 투자일임업 영업행위의 효력과 성과보수에 관한 연구―대법원 2019. 6. 13. 선고 2018다258562 판결을 중심으로―

Supreme Court Decision 2018Da258562 Dated June 13, 2019 (hereinafter, the “Decision”) is the first case to deal with the validity of a discretionary contract and contingency remuneration agreement entered into with an unregistered discretionary investment business under the Financial Investment Services and Capital Markets Act (the “Capital Markets Act”). The Decision found that the validity of the discretionary contract entered into with an unregistered discretionary business, and the agreements on contingency remuneration and loss compensation entered into therewith, are valid regardless of the criminal punishment and stipulated that the protective measures for investors under the Capital Markets Act are not applicable to unregistered discretionary investment businesses that are not subject to the regulation of the same Act. Considering that the prohibition on the business activity of unregistered discretionary investment businesses ultimately stems from the goal of the Capital Markets Act in pursuit of investor protection, even if the contract valid, it is reasonable to find ways to regulate the legal relationship that is created accordingly in line with the purpose of the Capital Markets Act. This is so because, as long as the validity of the discretionary investment contract entered into by an unregistered discretionary investment business is affirmed, the unregistered discretionary investment business is allowed to obtain contingency remuneration arising therefrom, there is an ample risk of providing an incentive to promote unregistered discretionary investment business activities if the economic benefit of such contingency remuneration exceeds the criminal punishment. Accordingly, there is a practical benefit to preventing illegal activities by defining legal relationships concerning unregistered discretionary investment business activities and establishing interpretive theories from the perspective of investor protection. Crimes related to investment advisory businesses and discretionary investment businesses are economic crimes. Hence, the most effective means to prevent such crimes is imposing economic disadvantages. The most specific and explicit solution would be legislative solutions of increasing the upper cap of penalty surcharges imposed on unregistered business activities, applying investor protection provisions applicable to registered financial investment business operators to unregistered business operators, or adopting a punitive damages system; specific legislation, however, may rather be far from a substantive solution and may offer offenders room to circumvent regulation. Considering the above, in possible cases, it would be a more plausible direction to reasonably apply the law in line with the specific situation by determining how the legal principles are applied based on interpretive theories. Allowing investors to claim compensation based on tort against unregistered discretionary investment businesses is likely to be the most effective method of interpretation at present. As grounds for the damages claims, if a violation of a mutually agreed-upon duty of explanation and duty of care under the principle of good faith under the Capital Markets Act beyond the negligence of registration obligation under the same Act are acknowledged as the grounds, it will facilitate investors’ damages claims. It is desirable to aim for the result where unregistered discretionary investment businesses would not choose illegality with economic incentives by lowering the expected profits for the illegal activities-being unregistered-of unregistered discretionary investment businesses.