금융투자상품의 투자권유규제에서 적합성원칙과 설명의무

Abstract

The ‘Capital Market and Financial Investment Services Act’(the Act) has newly introduced a comprehensive concept of financial investment products and allowed integration of all financial investment services. These initiatives increase risks of investors, so the Act has enacted ‘suitability obligation’ and the duty to reasonably explain about risks of investment instruments. The new regulations on investor solicitation are applied to non-professional investors only. Some professional investors, however, are permitted to change to the non-professional investors for more protection. The suitability principle consists of know-your-customer rule and a suitable recommendation for a specific investor. The financial companies need to grasp investor profiles such as wealth status, investment purpose, experience, etc., through interviews with potential investors prior to solicitation. The duty of reasonable explanation requires financial investment companies to provide investors with detailed product guidances on the contents and underlying risks of the products when making investment recommendation. The law recognizes civil liabilities against violation of the duty to explain. Moreover, the Act presumes investment companies are liable for losses and damages incurred to investors from their incomplete explanation and presumably regards the loss on principal as the amount of damage. In addition to the overall explanation about the new regulations, this article reviews, and makes arguments for, some relevant legal issues in each part as follows. First, it is desirable for the regulations to be applied to non-professional investors only and for some non-professional investors those who want to change to professional investors to be permitted. Next, customer information should be maintained and updated as fresh as possible. On-line financial investment companies need to be regulated as far as there are representations equivalent to common recommendations on their websites. Third, an exemplary standard as well as some other objective standards is suggested for determination of suitability in light of practical compliance. In case of the duty to reasonably explain, this paper argues that it is a more objective and general standard contrary to the suitability obligation which is subjective and customer specific. It also insists the product guidances be written with plain and easy expression for better understanding by ordinary investors. The civil liability clause needs an amendment to make clear the calculation time for loss and the statute of limitations. Finally, ideal is that to make proper balance between the new regulations on investment recommendation and the investors’ own responsibility in making investment decisions for the overall market efficiency.