투자권유 없이 거래하는 고객에 대한 금융투자업자의 의무

초록

Under the Financial Investment Services and Capital Markets Act (the "Capital Markets Act"), the provisions providing suitability obligations and a duty to explain the details of the financial investment instrument are enforceable only when a financial investment business entity makes an investment recommendation to an ordinary investor. Thus, in the absence of an investment recommendation, the financial investment business entities can stand by even if they know that the customer is engaged in an unsuitably risky investment without an understanding of the risks involved. Considering the changes in regulatory circumstances as well as the irrational investor behavior, however, the principle that suitability obligations are premised upon the financial investment business entity's making a recommendation should be reexamined. In order to provide appropriate protection to customers who purchase unsuitable securities in unrecommended transactions, this Article recommends imposition of several duties on the financial investment business entities: (i) "a duty to warn" an unsophisticated customer when his trades are inconsistent with his investment objectives; (ii) "a duty to know your customer" regardless of whether or not a recommendation has been made; and (iii) "a duty to provide relevant information" of the financial investment instrument. A duty to warn would play an important role, for the most urgent protection for a customer who makes unsuitable transactions is to let him know the unsuitability of the instruments to give up his purchasing them. However, it is unreasonable to expect that the financial investment business entities refuse to execute an unsuitable order for a customer even after properly warning the customer of unsuitability, because they are not strictly liable for the customer's "financial suicide." Investors have the minimal duty to understand that investing in capital markets is inherently risky.

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