금융규제법상 포괄개념 도입의 가능성과 타당성- 자본시장통합법상 금융투자상품의 개념을 중심으로-

Abstract

The Capital Markets and Financial Investment Services Act introduces a

comprehensive definition of financial investment products as a legal basis for a

more comprehensive and flexible capital market regulation. Such a comprehensive

definition of legal terms does not appear to be general in Korea, which leads to

some concerns on the uncertainty involving the interpretation and application of

such broad terms. For this reason, the new Act ensures its applicability and legal

certainty through three step-definition of financial investment products with their

essential functions and risks taken into consideration.

Firstly, regarding the definition of financial investment product, the function

and risk test is considered relatively clear as there exists a wide consensus on

the meaning of function and risk of financial investment products. The new Act

also provides for a set of quantitative criteria for which can be used in applying

the tests of function and risk. Secondly, with regard to the definition of

securities, there may be disputes over the interpretation and application of the

resemblance test to some types of investment products involving physical

commodities or any interests therein. Thirdly, in the case of derivatives, the main

issue is the differentiation of derivatives and insurance products as the new Act

expanded the scope of underlying assets very broadly including risks traditionally

hedged through insurance products. But the Government announced a plan to

introduce a new definition of insurance products. According to the plan,

insurance products cover any risk management products if only the insureds or

the beneficiaries of the products have material insured interests in the products...