‘제조물’ v. ‘금융상품’에 내재된 위험에 대한 합리적 통제를 위한 비교․검토

Abstract

The market is not always considered the best institution for efficient reallocation of resources because of several reasons. In particular, making contract for products in B2C has produced several fundamental problems. First, unbalanced bargaining power is another problem resulting in unilateral transactions. Second, the asymmetric information is a common problem resulting in unfair transactions. Third, liability for risk from products is not reasonably distributed between a business party and consumers. In order to solve these problems, special statutes have been passed. ‘Act on the Regulation of Terms and Conditions’ has played a remedial role for unilateral transaction from unbalance bargaining power. ‘Framework Act on Consumers’ requires business party to provide consumers with the information of products for the symmetric stage. Product Liability Act has helped to reasonably allocate the risk of products between manufacturers and victims from manufacture defects. Making contract for financial products, mostly about financial instruments, has the same problems like doing for products because of the feature of B2C transactions and the complexity of contracts. However, the response to problems from financial products is different from general products. ‘Financial Investment Services and Capital Markets Act’ for B2C transactions of financial products may be equivalent to ‘Framework Act on Consumers’. ‘Financial Investment Services and Capital Markets Act’ has focused on the duty to inform and the strict compliance of process in making contract to protect consumers’ right and interests. The purpose of this Act is not designed for the protection of financial consumer but for the financial market. The Article 1 of this Act is “to contribute to the development of the national economy by facilitating financial innovation and fair competition in the capital market, protecting investors, fostering the development of the financial investment business, and heightening the fairness, reliability, and efficiency of the capital market“. No compared statute with ‘Product Liability Act’ has been provided for financial products. In fact, financial products has been designed and created based on internal and external risks although this kind of risk is totally different from the risk from products. Design defect of products is subject to negligent liability to manufacturers if a reasonable alternative and safer design is available. No mentioned for risk liability in financial products. I admit that financial products are totally different from general products in their features and how to make. However, this difference may not necessarily make any different from risk liability. The risk information in financial instrument is almost impossible to access from the point of view by financial consumers. Even it is relatively hard for the financial institutions dealing with financial instruments to access the risk information. It is the time to discuss how to distribute risk liability from financial instruments like from product liability. I would like to encourage academic scholars to review how to distribute the risk from product liability and compare with how to distribute the risk from financial instruments.