일본 금융상품거래법상 특정투자자제도에 관한 고찰

Abstract

The Financial Investment Services and Capital Market Act of Korea adopts the so-called professional investor system and defines an investor who is not a professional investor as a “non-professional investor(Provision 6 of Article 9)”. This approach of dividing investors into different groups to regulate capital markets is not unique to the Korean system. Similar approaches have already been taken by the EU's Markets in Financial Instruments Directive (MiFID), Britain's Conduct of Business Sourcebook (COBS) and Japan's Financial Instruments and Exchange Law. In efforts to better regulate financial markets and better protect individual investors, the EU's MiFID and Britain's COBS even divide investors into three separate groups - retail clients, professional clients and eligible counterparties. But this approach of trisecting investors makes it rather difficult for any one to compare these systems to the Korean system in such subjects as scope of professional investor and regulations on conduct of business, simply because the Korean law divides investors into only two groups. Japan's Financial Instruments and Exchange Law, however, employs the same “dichotomy” concept of distinguishing investors as the Korean system since it divides them into two groups - professional investor and general investor. It is from this context that this study mainly focuses on examining the similarities in and differences between the Japanese law and the Korean law, although the EU's MiFID and Britain's COBS are also briefly discussed Part II reviews the background and purpose for introducing the professional investor system as well as similar concepts and scope. Part III lists types of investor status conversion, conditions and requirements for each type of conversion including cases where an investor can change his or her investor status or vice versa, conversion procedures, term of validity and effects of conversion. Part IV analyzes the conduct of business regulations with respect to areas of application and exemption, exemptions from duty of report/disclosure and civil liabilities,regulations on general investment solicitation of acquiring securities, and regulations called for due to the opening of the market exclusively for professionals. And the final part of the study looks at the similarities in and differences between Korea's Financial Investment Services and Capital Market Act and the EU's MiFID