Under the current Korean Civil Codes’s contract law regime, even when the financial
products are sold not in compliance with the financial regulations, the consumers who bought
such financial products(hereinafter, the “Financial Consumer”) can not avoid the binding effect
of such contract. As a result, even if the Financial Consumers suffer the damages due to the
financial institutions’ violating the financial regulations that are provided to protect the Financial
Consumers, such Financial Consumers have no choice but to pursue the routes for tort liability
or the defect in consummating the contract such as ‘fraud’ by the financial institutions. Put
anther way, there is no way to get out of the binding effect of the contract unless the Financial
Consumers prove that there was a tourt act such as a fraud. This has been pointed out as
problematic given the express existence of the unbalance in the capability and expertise
between the Financial Consumer and the financial institution.
In this background, the Financial Services Commission prepared the draft bill making the
prior announcement of legislation of the Basic Act for Financial Consumer
Protection(hereinafter, the “Draft Bill”). The Draft Bill, among others, provided the right of
termination by the Finance Consumers when there is an incomplete sales of financial products
by the financial institution(hereinafter, the “Termination Right of the Financial Consumer” or
“TROFIC”).
In this regard, this article analyses the contents, significance and the conditions of exercising
the TROFIC, the characteristics and the implications thereof which will take in the entire civil
law contract system.
From the contract law perspective, the TROFIC is significant because it in some sense is
creating the duty to provide the information and the terminating power for the events that
occurred prior to the signing the contracts, which might not look familiar with the traditional
contract law concept. However, we should note that the fairness between the parties to the
contract is as important as the consumer protection and there must be proper balance.
Sufficient Compensation should be made so that the TROFIC can be successfully settled and
achieve the desired outcome.