장외파생상품거래에 있어서 금융소비자 보호의 체계 (A System of Financial Consumer Protection in OTC Derivatives)

서지정보

· 발행기관 : 한국기업법학회
· 수록지 정보 : 기업법연구 / 24권 / 3호 / 353 ~ 392페이지
· 저자명 : 한병영

초록

The purpose of this paper is to understand general investor as the party applicable to financial consumer over-the-counter (OTC) derivatives to recognize the justification for protection and develop the system by finding the legal principle for protection in a way of drafting the effective protection plan. Most of its content is the clearing of existing legal principles but new attempt is made to quote or apply the legal principle on consumer protection on the manufactured products.
For legal principles to be applied to the OTC derivatives, the principles of contract law would be more likely to apply rather than those of securities laws since the OTC derivatives have formed with the structure of entering into contract on the one-on-one basis, not being used as in the way of securities. The approach is made to protect the consumers of OTC derivatives with the legal principles of civil law in invalidity, error, fraud, termination and the like. In light of the complexity of the OTC derivative structure, financial consumers easily enter into the contract under error, fraud or others with the failure to carry out the obligation of notification and there could be an issue of terminating the contract following the continuance of the contract.
In the event that violations of due diligence obligation, fiduciary duty, protection of customer's interest, obligation to describe, or suitability rule as well as illegal transactions would constitute as torts to hold financial consumers as liable for damage compensation, the approach is made to the conversion method of product liability or burden of proof. Lastly, the contract used in the OTC transaction while approaching by applying the consumer protection principle would be considered as an article to apply the guaranteed right of consumers under the article regulation laws to financial consumers as reasonable. The class action system also would need to be introduced for the OTC derivatives as well as the need to introduce the right to cool off or voluntary cancellation right as well as the recall system, and even if the product liability cannot be applied to consumers of OTC derivatives directly, the principle may be used to review with respect to reflecting the same on the legislation.

영어초록

The purpose of this paper is to understand general investor as the party applicable to financial consumer over-the-counter (OTC) derivatives to recognize the justification for protection and develop the system by finding the legal principle for protection in a way of drafting the effective protection plan. Most of its content is the clearing of existing legal principles but new attempt is made to quote or apply the legal principle on consumer protection on the manufactured products.
For legal principles to be applied to the OTC derivatives, the principles of contract law would be more likely to apply rather than those of securities laws since the OTC derivatives have formed with the structure of entering into contract on the one-on-one basis, not being used as in the way of securities. The approach is made to protect the consumers of OTC derivatives with the legal principles of civil law in invalidity, error, fraud, termination and the like. In light of the complexity of the OTC derivative structure, financial consumers easily enter into the contract under error, fraud or others with the failure to carry out the obligation of notification and there could be an issue of terminating the contract following the continuance of the contract.
In the event that violations of due diligence obligation, fiduciary duty, protection of customer's interest, obligation to describe, or suitability rule as well as illegal transactions would constitute as torts to hold financial consumers as liable for damage compensation, the approach is made to the conversion method of product liability or burden of proof. Lastly, the contract used in the OTC transaction while approaching by applying the consumer protection principle would be considered as an article to apply the guaranteed right of consumers under the article regulation laws to financial consumers as reasonable. The class action system also would need to be introduced for the OTC derivatives as well as the need to introduce the right to cool off or voluntary cancellation right as well as the recall system, and even if the product liability cannot be applied to consumers of OTC derivatives directly, the principle may be used to review with respect to reflecting the same on the legislation.

참고자료

· 없음