자본시장법상 투자자보호제도의 적정성에 관한 연구

Abstract

Several devices for investor protection have been introduced in the ‘Financial Investment Services and Capital Markets Act’(hereafter ‘Capital Markets Act’), enacted on February 4, 2009 for the purpose of developing the Korean capital market and financial investment business. This paper divides the investor protection mechanism into pre-emptive and post protection, and reviews the suitability and effectiveness of pre-emptive devices in the Capital Markets Act. It also provides some factors for consideration pertaining to the establishment of an investor protection fund in Korea after reviewing cases in other countries, such as the U.S., U.K. and Japan. Even though it is rather difficult to assess the absolute suitability of the investor protection mechanism in comparison with other countries which have different rates of economic development, and financial market circumstances, it can be said that the Capital Markets Act provides fairly efficient devices for investor protection in Korea such as the suitability rule, the mandatory explanation of financial investment products to customers, the know-your-customerrule, prevention of interest conflicts between financial institutions, etc. It is expected to have a wide range strengthening impact on the Korean financial market. On the other hand, the investor protection fund as a device of post protection would close all loopholes of preemptive protection devices. Once a financial investment company that violated the law cannot reimburse their customers due to bankruptcy, the fund will reimburse the customer in place of the bankrupt company. Some considerations, such as the regulatory differences of capital soundness of financial institutions, separate managementof investors' deposits, the scope of investors’ protection, and the existence of a comprehensive deposit insurance system in Korea, should be fully discussed when establishing an investor protection fund.