금융규제법상 포괄개념 도입의 가능성과 타당성 - 자본시장통합법상 금융투자상품의 개념을 중심으로

Abstract

The Capital Markets and Financial Investment Services Act introduces a comprehensive definition of “financial investment products” as a legal basis for a more comprehensive and flexible capital market regulation. Such a comprehensive definition of legal terms does not appear to be general in Korea, which leads to some concerns on the uncertainty involving the interpretation and application of such broad terms. For this reason, the new Act ensures its applicability and legal certainty through three step-definition of financial investment products with their essential functions and risks taken into consideration. Firstly, regarding the definition of financial investment product, the “function and risk” test is considered relatively clear as there exists a wide consensus on the meaning of function and risk of financial investment products. The new Act also provides for a set of quantitative criteria for which can be used in applying the tests of function and risk. Secondly, with regard to the definition of securities, there may be disputes over the interpretation and application of the resemblance test to some types of investment products involving physical commodities or any interests therein. Thirdly, in the case of derivatives, the main issue is the differentiation of derivatives and insurance products as the new Act expanded the scope of underlying assets very broadly including risks traditionally hedged through insurance products. But the Government announced a plan to introduce a new definition of insurance products. According to the plan, insurance products cover any risk management products if only the insureds or the beneficiaries of the products have material insured interests in the products concerned. Fourthly, there still remain some uncertainties on the applicability of the new Act to some types of transactions on the tangible and deliverable assets. It should be noted that the new Act does not clearly include the regulation of transactions on the tangible and deliverable assets within its scope. The new Act only provides for the general test of investment purpose to differentiate the financial investment products from a commercial transactions. Finally, there arises a need of fundamental change in the practice of financial supervision. Such broadly-defined concept of financial investment product would make it difficult for the regulators to continue their traditional administrative and ex-ante regulation on financial investment services. Therefore, it is a prerequisite for the efficient and stable implementation of the new regulatory system to apply a judiciary and ex-post financial consumer protection.