자본시장법상 내부주문집행 제도의 규범적 과제: 한국 자본시장에서의 제도적 정립 방향

Internalization refers to a situation where a comprehensive financial investment entity executes customers’ orders not through regulated exchanges or alternative trading systems, but by utilizing its own internal system to complete trades. Despite the legal basis for the internalization system being established over ten years ago through the 2013 revision of the Financial Investment Services and Capital Markets Act, no comprehensive financial investment entity is actually providing this service. This reality reveals a gap between institutional design and market realities. Therefore, this study identifies the underlying causes of the internalization system’s lack of effectiveness through a comparative legal analysis of systems in major overseas countries such as the US, EU, and Canada, where internalization is active, and proposes reform measures to adapt the system to be suitable for Korea’s market structure. Furthermore, it conducts an in-depth analysis of the legal nature, problems, and improvement measures of the best execution obligation, which is necessarily applied in the internalization process, from the perspective of fiduciary duties. This study proposes the following policy recommendations for establishing an internalization system suitable for the Korean capital market structure. First, it is necessary to clearly reclassify types of internalization. For listed stock internalization, the minimum trade size requirement should be eliminated to enable efficient processing of small-value (retail) trades, while imposing a pre-trade transparency obligation to contribute to market efficiency and price discovery. Conversely, large-volume trades primarily utilized by institutional investors should be separately classified and regulated as dark pools exempt from pre-trade disclosure requirements. Additionally, where comprehensive financial investment entities act as counterparties to customer orders, mandating the provision of prices more favorable than market prices (price improvement) is necessary to substantially strengthen investor protection. For unlisted stock internalization, objective price evaluation criteria should be established, disclosed, and mandated for compliance through external professional evaluation institutions to ensure transaction professionalism and fairness. Finally, the best execution obligation should be strengthened by restructuring it into a principle-based regulatory framework that applies consistently to all financial investment products as a declaratory obligation clause, serving as a critical institutional foundation for reinforcing fiduciary duties. This study is expected to contribute both academically and practically by analyzing the structural characteristics and current state of Korean capital markets and proposing normative improvements for the internalization system to play a significant role within the existing structure.