투자자문업자의 주의의무 ―적합성원칙과 설명의무를 중심으로

Abstract

The Capital Market and Financial Investment Business Act (the Capital Market Act) defines "investment advisers" as a "business that provides advice on the value of financial investment instruments or related judgments over class, item, acquisition, disposition, methods of acquisition or disposition, quantity, price, time, etc. Development of various types of financial investment instruments and their highly complicated structures escalated investors' reliance on financial professionals. Recently, especially, as demand for investment advisers' services increases and investment advisers expands their operations, protection of investors under the contractual relationship with investment advisers drew attention in perspective of financial market regulation. The Capital Market Act carries provisions of the suitability principle and duty to explain. While, these two obligations originated from regulation of broker-dealers in the U.S. securities market, the Capital Market Act provides them as applied to all kinds of financial investment business entities. What is more, the financial investment business entities are applied by the provisions when making investment recommendations to non-professional, ordinary investors. Considering, however, the differences in business operations of broker-dealers and investment advisers and the fact that the investment advice of broker-dealers is confined to a particular financial investment instruments while that of investment advisers relates to overall management of the investor's assets, elements to be considered and disclosed to investors by investment advisers shall be different from those required for broker-dealers. Also, since every professional investor does not have the same level of understanding regarding highly complicated financial investment instruments and they turn to investment advisers when lacking full confidence in their financial experience and knowledge, they need to be included in the scope of investors protected by the suitability rule and duty to explain applicable to investment advisers.