전자지급거래에서 지급자금의 보호의무와 신탁- 전자금융거래법을 중심으로

With the recent expansion of electronic payment transactions including the growth of electronic payment gateway (PG) services and prepaid payment instruments risks related to non-refund and unsettled user funds in simple remittance and payment transactions have been increasing each year. Against this backdrop, incidents such as the Merge Point crisis and the settlement failures involving Tmon and Wemakeprice have caused substantial damage to user funds. In response, the amended Electronic Financial Transactions Act (EFTA) of 2023 and the additional amendment scheduled to take effect in August 2024 promoted by the Financial Services Commission to prevent future incidents like the Wemakeprice case introduce or strengthen mandatory requirements for fund protection measures, including deposits, trusts, and payment guarantee insurance. Currently, as the volume of prepaid funds managed by prepaid service providers continues to grow, these entities are primarily using designated money trusts with their main banking partners to fulfill their obligations to protect user funds. However, such designated money trusts serve a different legal and institutional purpose than traditional trusts focused on increasing returns for the trustor; rather, they exist to ensure strict protection of user and merchant (affiliated store) funds. As a result, the trust assets are generally limited to risk-free, safe instruments, significantly reducing the potential for active fund management. Because the funds are pooled from a large number of unspecified users and merchants, it is practically difficult to designate specific beneficiaries. Therefore, the EFTA should introduce clear provisions for information provision to resolve potential conflicts with the Personal Information Protection Act and the Credit Information Act. To eliminate regulatory blind spots and clarify the scope of regulation, it is also necessary to clearly define the concepts of prepaid service providers and PG service providers, thereby specifying the obligated parties under the law. Furthermore, the amended EFTA should avoid pyramid-like transaction structures such as multi-tiered PGs and instead pursue simplification similar to that of the Specialized Credit Finance Business Act. It is also important to align regulations across relevant laws and business sectors performing similar functions particularly concerning the proportion of assets allowed to be entrusted. Since the trustors of designated money trusts, such as prepaid service providers and PG operators, are not professional investors, their direct involvement in specifying investment methods may lead to mis-selling if they lack expertise or a full understanding of the product. Thus, it is necessary to strengthen solicitation regulations under the Capital Markets Act and clearly define what information is subject to the suitability principle. Disclosure obligations during the sales process should also be reinforced. Finally, to prevent the misuse of funds and moral hazard in trust structures that allow the trustor to make deposits and withdrawals at will, internal control systems must be strengthened to enhance transparency in the management of entrusted funds.