금융투자업자의 신인의무에 대한 소고 - 미국에서의 논의를 중심으로 -

Abstract

The "Dodd-Frank Wall Street Reform and Consumer Protection Act", recently enacted in the U.S. with a view to strengthen investor protection, states that the SEC "may promulgate rules to provide that" "a broker or dealer, when providing personalized investment advice about securities to a retail customer" is applied by "the standard of conduct" which "shall be the same as the standard of conduct applicable to an investment adviser under section 211 of the Investment Advisers Act of 1940." The Dodd-Frank Act is the first law that stipulates brokers, dealers, and investment advisers as having fiduciary duties against their clients. Before the legislation, while case laws have recognized the fiduciary duty of investment advisors, that of brokers and dealers has been disputed producing several theories on whether and, if so, to what extent the broker-dealer's fiduciary duty should be acknowledged. In this regard, the Dodd-Frank Act should be appraised to have made a tentative conclusion on the dispute in a restrictive manner. Under the Capital Market and Financial Investment Business Act of Korea, financial investment businesses bear fiduciary duties. The fiduciary duties of each financial investment businesses need to be differentiated depending on the extent of trust and confidence on them by their clients. The Capital Market Act, however, does not provide specific standards of conduct applied to each of investment advisors and discretionary investment advisors, on whom retail customers put greater trust and confidence than on brokers and dealers, although it does emphasize their fiduciary duty, which calls for further study on detailed standards of conduct, originated from fiduciary duty, imposed on each financial investment business,