적합성 원칙에서 최선이익 기준으로의 변화: Regulation BI에 따른 브로커-딜러의 의무를 중심으로

초록

On June 5, 2019, the U.S. Securities and Exchange Commission (“SEC”) adopted Regulation Best Interest (“Regulation BI”), which requires broker-dealers to act in the best interest of their retail customers when making a recommendation. The SEC also adopted Form CRS Relationship Summary, which requires registered investment advisers and broker-dealers to deliver to retail investors a succinct, plain English summary about the relationship and services provided by the firm and the required standard of conduct associated with the relationship and services. Regulation BI has a “general obligation”, which requires that the broker or dealer comply with four component obligations: the disclosure obligation, the care obligation, the conflict of interest obligation, and the compliance obligation. The general obligation requires that broker-dealers, when making a recommendation of any securities transaction or investment strategy involving securities (including account recommendations) to a retail customer, act in the best interest of the retail customer at the time the recommendation is made, without placing the financial or other interest of the broker-dealers ahead of the interest of the retail customer. Prior to the adoption of Regulation BI, broker-dealers were held to a “suitability” standard that required broker-dealers to sell products that were “suitable” for retail customers based on such characteristics as age, goals and risk tolerance. Under Regulation BI, broker-dealers must act in the best interest of their retail customers and are not permitted to place their own self-interests ahead of their customers’ interests. This is an enhanced standard of care, but still is considered to be a less stringent standard than the required fiduciary duty an investment adviser has to its customers. After reviewing the adoption background and the contents of Regulation BI, this Article suggests that domestic regulators should consider amending the current regulations for investment brokers and investment traders under the Korean Capital Markets Act by incorporating the structure of Regulation BI.

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