일본의 금융상품거래업에 대한 규제 동향 및 시사점 ― 금융상품거래업자 등의 행위규제를 중심으로 ―

Abstract

This paper introduces the recent developments forcusing on the regulation contents set by a Japanese the Financial Instruments and Exchange Law and a movement about regulation of a financial institution. With the development of financial technologies, some financial products not covered in the current regulations for user protection have been appearing, and there have been also cases of users suffering damages. It is necessary to compile comprehensive and cross-sectional rules for user protection and to develop an environment where users can invest with confidence. In order to respond to these issues, the bills to develop the legislative framework for financial instruments and exchange were approved in the ordinary Diet session in June 2006. The name of the Securities and Exchange Law will be amended to the Financial Instruments and Exchange Law. The four laws will be abolished to be consolidated into the Financial Instruments and Exchange Law. In the Financial Instruments and Exchange Law, it is stipulated that financial instruments firms should comply with the following rules of conducts(rules for sales and solicitation)in conducting sales or solicitation of securities or derivative transactions. For example, “Obligation to deliver document in a written format at the time of a contract”, “a ban on unwanted solicitation” and “Principle of appropriateness” activities and the like. From the point of view to more flexible regulation on conduct of businesses, all customers for financial instruments firms are categorized into “professional investors” or “general investors,” some of them may apply for a change of status from one to the other. In this revision, concerning “sales and solicitation” activities for deposits and insurance with strong investment characteristics, the Banking Law, the Insurance Business Law, and the like, have been amended so that the same regulation for user protection(rules for sales and solicitation)as those under the Financial Instruments and Exchange Law will be applied to them. In this legislative revision, the scope for civil money penalties and criminal penalties will be enlarged to be applied to market manipulation. In order to ensure user protection, secure fairness and transparency in transactions, and establish public confidence in the markets, the current level of penalties under the Securities and Exchange Law will be increased concerning violation of disclosure requirements and unfair trading. Through the present regulation related to a Japanese financial service, it is necessary to expedite efforts to the preparation and correspondence of the Capital Market and Financial Investment Services Provider Act in Korea.