금융소비자보호법상 분쟁민원 해결과 편면적 구속력에 대한 법적 연구

Abstract

The role of the Financial Dispute Settlement Committee(FDSC) of the Financial Supervisory Service(FSS) has become important due to the incidents of financial consumer protection issues ranging from mis-selling cases of KIKO, DLF, and private equity funds(PEF) to immediate annuity cases, which have gradually increased the scale of consumer damages in the financial sector. When a financial dispute is filed with the FDSC of FSS and reaches the stage of settlement, the result of the settlement will come out. Settlement(or mediation) is not legally binding on the results, such as arbitration or court conciliation. It is merely a recommendation of the FDSC. However, if both the financial consumers and the financial companies accept the decision of the FDSC, the settlement will take effect in accordance with Article 39 of the Korea Financial Consumer Protection Act, which is identical with the final judgment. However, in dispute settlement practices, there are no effective countermeasures even if a financial company does not accept the decision of the FDSC without a justifiable reason. In order to ensure the effectiveness, the redress function in dispute settlement must be improved, and if the consumer accepts the decision of the FDSC, it is necessary to introduce one-sided binding force on financial companies. Recognizing one-sided binding force has the same effect as when all parties in the dispute accept the settlement of the FDSC under the current law. Representative countries implementing one-sided binding force in financial dispute settlement include the UK, Germany, Australia, and Japan, and there is also an active recommendation from the World Bank in this regard. Even EU countries, such as Poland, Lithuania, Hungary, and Ireland are implementing two-sided binding force that legally binds both financial consumers and financial companies. Therefore, the Korea Financial Consumer Protection Act should be revised, so that, if consumers accept the decisions of the FDSC in small claims cases, it will have the same effect as the court conciliation. In other words, for one-sided binding force to be applied, the following two requirements must be satisfied. First, it is necessary to determine financial consumers who are subject to one-sided binding force, and who are the ordinary financial consumers stipulated in Article 2, No. 8 of the Korea Financial Consumer Protection Act. Second, it would be reasonable to limit financial dispute cases to small claims cases, not all cases, and to small claims within 20 million won, which is the standard for dispute cases on small claims in accordance with Article 42 of the Act and Article 36 of the Presidential Decree of the Act. To this end, I would like to propose three amendments. The first proposal is to stipulate Article 42 of the Korea Financial Consumer Protection Act as the “standard for small claims cases” and Article 42-2 as the “special provision on small claims cases” in order to establish one-sided binding force including the settlement withdrawal prohibition system and the lawsuit suspension system. The second proposal is to make Article 42 as “special provision on small claims cases” including all contents mentioned above. However, the third proposal, as the simplest one, is to newly provide Article 42-2(one-sided binding force), as in the National Assembly member Yong-woo Lee’s existing proposal.