전문투자자규제에 관한 비교법적 고찰 및입법적 개선과제 －자본시장법, EU의 금융상품시장지침 및영국의 업무행위규칙을 중심으로－

Abstract

The Financial Investment Services and Capital Market Act has adopted the so-called "professional investor system," which was not dealt with by previous investment trust-related laws of Korea such as the Securities and Exchange Act and the Futures Trading Act. Experts expect that this system will bring more efficient and effective regulation because it enables better concentration of limited regulatory resources in ways to further protect individual investors. They also expect that it will help reduce and/or remove some of the unnecessary regulations on professional investors and thus minimize regulation-related expenses that financial investment business operators may bear, and encourage financial firms to supply the market with services and products tailored to the special needs of diverse professional investor groups. In Korea, the issue of introducing such a system to the Financial Investment Services and Capital Market Act had already been raised and discussed many times throughout the legislation process. The fact, however, that there is yet almost no published unbiased in-depth documents elaborating the system itself and how to properly manage it may still work as an obstacle eclipsing the potential benefits of introducing it to the country's legal system to the extent that the very scarcity of such documents blocks even the people in the investment community from fully understanding the ramifications of each clause or provision as written in the law. It is from this context that this essay first examines the cases of the EU (Markets in Financial Instruments Directive, or MiFID) and Britain (Financial Services and Markets Act of 2000 and its subordinated Conduct of Business Sourcebook, or COBS), which adopted the system before Korea, and discusses the scenario where Korea actually integrates it into its legal framework. To have a better perspective on regulatory history, the article compares three laws that are considered similar to Korea's Financial Investment Services and Capital Market Act–the EU's MiFId, Britain's COBS and Japan's Financial Instruments and Exchange Law. To illustrate the main areas of regulation, it analyzes the issue from three different angles, which are investor classification-dichotomy and trichotomy, ways of defining professional investor, the scope of professional investor and conversion to professional investor. To find out the legal effects of regulation, the essay also reviews such areas as exemptions from conduct regulation, effects on civil suits and effects of mistakes in classifying professional investor. Finally, to aid future legislative efforts, the study makes such suggestions as settling the legal representative or proxy issue, creating better rules on collective investment schemes in terms of the scope of professional investor, making procedural improvements for both cases of investor conversion, guaranteeing conversion effect against a third party, applying administrative measures to any violation of the suitability rule that may occur when an individual converts to a professional investor, re-organizing client-and investor-related terminology, differentiating professional investor clearly in concept from qualified investor and devising preventative measures against any possible system abuse.