“자본시장과 금융투자업에 관한 법률”에 대한 소고

• 영문명: A Study on the Financial Investment Services and Capital Market Act
• 발행기관: 전남대학교 법학연구소
• 저자명: 이종훈(LEE, Jonghoon)
• 간행물 정보: 『법학논총』제29권 제1호, 195~217쪽, 전체 23쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2009.06.30

영문 초록

Financial Investment Services and Capital Market Act (“the Act”) was newly enacted on August 3, 2007 and has been effective from February 4, 2009, which was established for the purpose of changing our capital market dramatically by means of bringing in the merits of the capital market of advanced countries. The details on major changes are as follows; Firstly, the core of the Act is that the principle of comprehensiveness was selected as a major standard of the Act. The definition named financial investment instrument (“FIS”) was introduced to make the scope of the financial instruments to be applied to the Act comprehensively. The FIS consists of three(3) items such as securities, exchange-trade derivatives and over-the-counter derivatives. Securities are composed of six(6) items like debt instrument, equity securities, beneficiary certificates, investment contract securities, derivatives-combined securities and securities depositary receipts. Secondly, the Act was categorized by six(6) Financial Investment Businesses such as investment trading business, investment brokerage business, collective investment business, investment advisory business, discretionary investment business and trust business. And investors was categorized by ordinary investor and professional investor. Based on the combination of such categories, each financial function could be specialized, and the requisites of entry to serve each financial function was established. Thus, in order to serve another financial function, the requisite of entry required shall be met. Thirdly, the financial investment business entity(“FIBE”) could operate all six(6) businesses in case he meets the requisite of entry. On the other hand, so as to solve the issue of conflict of interest arising from such addition of business, several principles including, but not limited to, cut-off of exchanges of information was stipulated in the Act. Fourthly, the articles for the protection of investors, especially, an ordinary investor was reinforced through introducing the principles such as the principle of prohibition on undue recommendation, the principle of suitability and explanation. The comments necessary for changing and enforcing the Act more desirably are as follows; Firstly, the role of supervisory authorities shall be fortified to prohibit misuse of the Act, by which we could not undergo the international financial crisis which the developed countries now has undergone. Also, so as not to undergo any kind of international financial crisis to be happened in the future, the establishment of international financial regulation to be applied to and bind upon almost all of the countries would be essential. Secondly, it would be substantial to protect investors, especially, an ordinary investor from the behavior that the FIBE try to gain more money under the sacrifice of investors. Article 44, 49 and 147 of the Act serve those purpose. Thirdly, it would be essential to maintain the impartiality of the credit appraisal. Therefore, it would be critical for a credit appraisal company(“CAC”) to appraise objectively, by dint of paying the appraisal fee to CAC, not by the FIBE but by the third party to whom the FIBE shall deposit the appraisal fee. Finally, the development of capital market shall keep pace with 1st industry and 2nd industry through which the capital market would grow soundly and harmoniously.

목차

Ⅰ. 서설(문제의 제기)

Ⅱ. 자본시장법의 주요내용

Ⅲ. 자본시장법의 개선방향

Ⅳ. 결 어

키워드

금융투자상품 포괄주의 금융기능 금융투자업 투자자보호 이해상충 국제금융법규확립 financial investment instrument comprehensiveness financial function financial investment business entity protection of investor conflicts of interest establishment of international financial regulation