옵션부 이종통화예금에 대한 자본시장법적 고찰 - 금융투자상품의 투자성에 대한 기준에 대하여 -

Abstract

<abstract> Legal Study on the Dual Currency Deposit with Currency Swap Option issued by Banks from a point of view of the "Capital Markets and Financial Investment Business Act" With the enactment of the Capital Markets and Financial Investment Business Act (hereinafter, the "Capital Markets Act") as of February 4, 2009, derivatives business, trust business, fund sale business conducted by banks, are now regulated by the Capital Markets Act. The Capital Markets Act also extends the definition of the Financial Investment Product to include any product for which the customer's total return is less than the amount paid. The broad definition of the Financial Investment Product allows regulation of any and all products with an investment component, which are now existing or will be introduced in the future. Given such broad definition, there may be products which have characteristics of both deposits or insurance products and the Financial Investment Product. Thus, it becomes necessary to discuss the distinction between the Financial Investment Product and deposits or insurance products under the new legislation. I would like to introduce the "Dual Currency Deposit" as one of the examples. Even before the enforcement of the Capital Markets Act, foreign bank branches and some local banks sold the "Dual Currency Deposit" under the existing banking laws and regulations. In a "Dual Currency Deposit," the bank may exercise the currency swap option at the rate initially agreed, which may result in a loss compared to the amount the customer would have received at the then current market rate. Due to this investment component, there arises a dispute whether this product should also be classified as a Financial Investment Product. However, Article 77 of the Capital Market Act exempts banks from obtaining a license under the Capital Markets Act for selling deposits with an investment component although other investor protection provisions may still apply. I view that this provision supports the position that the banks should be allowed to sell the "Dual Currency Deposit" as a banking product while clear guidelines from the regulators may also help the banks to market and sell the products in a proper way.