금융투자업자의 투자권유의 공정성규제 - 영국의 금융판촉규제 현황과 동향을 중심으로 -
Regulating Investment Recommendations by Financial Investment Business Entities : Focusing on the UK’s Experiences
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The Korea Financial Investment Services And Capital Markets Act (hereinafter “Financial Markets Act”) provides that the term “investment recommendation” means the act of making a recommendation to a specific investor to make a contract for trading financial investment instruments, for investment advising, for discretionary investment, or for a trust (excluding a management trust contract and a trust contract with no investment risk). The Financial Services and Market Act 2000 (hereinafter “FSMA 2000”) of UK contains a broad restriction on financial promotion. Under Section 21(1) of the FSMA 2000, “financial promotion” means the act of communicating an invitation or inducement to engage in investment activity in the course of business. The “financial promotion” concept appears on its face to be broader than the “investment recommendation” concept under the Financial Markets Act regime but they actually have the same meaning. Chapter Ⅱ of this article examines the requirements of the investment recommendations in the Financial Markets Act. Those requirements include the know-your-customer-rule, the principle of suitability, the principle of appropriateness, the duty to explain and the prohibition on undue recommendation. And the consequences of the breach of those duties or the infringement of the principles are also discussed. Then several Korean court cases which contain the investment recommendation issues are looked on. Chapter Ⅲ describes the restriction on financial promotion in UK FSMA 2000 and looks on relevant cases judged by courts and decided by the Financial Service Authority. And the latter part of this Chapter touch the UK Government’s plans to reform financial services following the financial crisis. Lastly, Chapter Ⅳ suggests that the setting out the legal system for investment recommendation is important but enforcing it efficiently and strictly is more important. This article recommends that the Korea Financial Supervisory Services exercises its powers more actively, particularly to prevent undue investment recommendation.
Abstract
The Korea Financial Investment Services And Capital Markets Act (hereinafter “Financial Markets Act”) provides that the term “investment recommendation” means the act of making a recommendation to a specific investor to make a contract for trading financial investment instruments, for investment advising, for discretionary investment, or for a trust (excluding a management trust contract and a trust contract with no investment risk). The Financial Services and Market Act 2000 (hereinafter “FSMA 2000”) of UK contains a broad restriction on financial promotion. Under Section 21(1) of the FSMA 2000, “financial promotion” means the act of communicating an invitation or inducement to engage in investment activity in the course of business. The “financial promotion” concept appears on its face to be broader than the “investment recommendation” concept under the Financial Markets Act regime but they actually have the same meaning. Chapter Ⅱ of this article examines the requirements of the investment recommendations in the Financial Markets Act. Those requirements include the know-your-customer-rule, the principle of suitability, the principle of appropriateness, the duty to explain and the prohibition on undue recommendation. And the consequences of the breach of those duties or the infringement of the principles are also discussed. Then several Korean court cases which contain the investment recommendation issues are looked on. Chapter Ⅲ describes the restriction on financial promotion in UK FSMA 2000 and looks on relevant cases judged by courts and decided by the Financial Service Authority. And the latter part of this Chapter touch the UK Government’s plans to reform financial services following the financial crisis. Lastly, Chapter Ⅳ suggests that the setting out the legal system for investment recommendation is important but enforcing it efficiently and strictly is more important. This article recommends that the Korea Financial Supervisory Services exercises its powers more actively, particularly to prevent undue investment recommendation.
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