인터넷상에서의 개인 간(P2P) 금융거래에 관한 법적 연구 - P2P 대출 거래를 중심으로 -

Abstract

Recently, the size of peer-to-peer ("P2P") lending transactions is rapidly expanding in worldwide as well as Korea, and it is so often discussed in relation to the development of the finance and technology (FinTech) industry. In Korea, the P2P lending transactions are exposed to some legal uncertainties because the relevant law is not yet enacted. This article is intended to review the relevant legal issues in relation to P2P lending and to suggest some recommendations to enhance the P2P lending business since this transaction is quite used for financing by low-income and low-credit rating people and further might be used by start-up or venture companies, which may contribute to the development of the "creative economy" agenda of the Park Administration. The major suggestions are as follows: first, since an individual lender may be regarded as conducting loan business if he/she is engaged in lending more than once, where he/she might violate the current relevant law, the Lending Business Act (the "LBA"), unless he/she files a registration, a special provision should be added to exclude such case. Second, because a platform operator may be considered as conducting a loan brokerage under the LBA, the firm should be excluded from the category of loan brokering business. Third, since loan claims under the P2P lending may be regarded as "securities" under the Capital Market Act, where heavy regulations are imposed on such operators and borrowers, the loan claims should be excluded from the category of securities. Fourth, the relevant laws for anti-money laundering should apply to the P2P lending. Fifth, the credit reporting scheme under the relevant law should also extend to the P2P lending. Sixth, a dispute resolution system of conciliation should apply to those disputes in relation to P2P lending. Seventh, the relevant provisions for protecting lenders as investors, including the imposition of sanctions on borrowers who have supplied false information to a lender and the requirements of supplying a borrower's credit grade to a lender, should be inserted. Eighth, the provisions for protecting borrowers should be also added, such as a duty of an operator to explain the important terms and conditions of a loan contract, including inherent risks in borrowing. Ninth, a special fund for compensating damaged lenders due to a borrower's default needs to be set up to protect lenders.