資本市場法上 不正去來行爲 禁止 規定에 관한 硏究

Abstract

〈國文要旨〉

본 논문은 2009년 2월 자본시장법의 시행 이후 발생한 제178조의 부정거래 규제에 관한 법리적․실무적 쟁점사항을 검토하여 합리적인 해석론과 적용방안을 모색하였다. 이 제도의 입법모델이 된 미국과 일본 등 주요국의 관계법규에 대한 비교․검토와 최근 발생한 증권불공정거래에 관한 국내외 사례 등을 중심으로 실무에서 제기된 적용상 문제점의 분석 및 법리적으로 논란이 되고 있는 쟁점사항에 대한 논의를 통하여 부정거래 규제가 제대로 기능을 할 수 있는 방안을 제시하고자 하였다. 자본시장법 시행 이후에 증권방송과 SNS, 가장납입, 알고리즘매매․전용선(DMA) 제공 관련 등 다양한 형태의 증권부정거래에 대하여 제178조를 적용하고 있으나, 다소 소극적인 적용으로 인하여 여전히 규제공백이 나타나고 있다. 포괄적 부정거래 규제에 관한 규정인 제178조 제1항 제1호는 추상적 행위유형을 나열하는 방식을 취하고 있으므로 다소 구체성을 띄는 동조 제1항 제2호 내지 제3호 및 제2항의 일반규정으로 해석할 수도 있으나, 예상치 못한 부정행위에 대응하기 위해 도입된 조항인 만큼 활용도를 높여야 할 것이다. 법리적 쟁점을 살펴보면 우선 제178조 적용범위에 관한 문제가 논란이 되고 있다. 동조 적용과 관련하여 실무에서는 부정거래 행위자의 직접적인 매매행위가 있는 경우에 한하여 요건을 충족한다고 보는 경향이 있다. 이는 행위자의 직접적인 매매가 있는 경우 고의성 입증이 용이하다는 점 때문에 일면 수긍이 가지만, 제178조 제1항 본문에서의 ‘매매관련성’이란 부정거래행위와 금융투자상품 매매 간의 인과관계를 의미하는 것으로, 매매관련성의 주체를 부정거래행위자로 한정하지 말고 일반투자자의 금융투자상품 매매에까지 확대 적용하는 것이 타당하다고 생각한다. 다음으로 자본시장법 제174조의 규율대상이 아닌 2차ㆍ3차 정보수령자의 미공개중요정보 이용행위를 제178조의 규율대상인 부정거래행위로 포섭하여 규범의 흠결을 보충할 수 있다는 주장이 있다. 그러나 우리나라는 미국과 달리 미공개중요정보 이용행위의 가벌성을 행위의 요소가 아닌 행위자의 지위(신분)에서 찾고 있고 신분범적 성격을 고려할 때 부정거래 행위자에 해당된다고 보기 어렵다. 그리고 상장회사가 부정거래적 요소를 포함한 허위공시를 하는 경우 단순히 공시위반만으로 볼 것인지, 아니면 공시위반행위와 동시에 부정거래금지 위반 행위에도 해당하는 것으로 판단할 것인지에 관하여 논란이 되고 있다. 실무에서는 공시위반 행위를 부정거래금지 위반행위 중 하나의 유형으로 해석하여 허위공시 등을 공시위반만으로 처벌하고 있다. 그러나 공시위반과 부정거래금지 위반은 별개의 개념으로 회사의 평판에 관한 사항, 단순한 기재 오류 등 시장에 미치는 영향이 미미한 경우를 제외하고는 경합범으로 판단하는 것이 바람직할 것이다. 또 다른 쟁점사항으로 선행매매(front running), 스캘핑(scalping), 2차 이하 정보수령자 등 자본시장의 건전성을 훼손하는 행위로서 현행 법규로 규율할 수 없는 시장정보 이용행위의 부정거래 해당성 여부에 관한 논의가 있다. 시장정보 이용행위는 최근 시장질서 교란행위의 한 범주로 판단하여 규제하려는 움직임도 있어 주목을 받고 있기도 하다. 그러나 시장정보는 부정거래행위로 포섭하기에는 인과관계를 입증하기도 어렵고 광범위한 적용범위 때문에 규제대상으로 하기는 부적절하다고 생각한다. 한편 부정거래 위반 사례를 분석해보면 시세조종행위를 수반한 부정거래 행태가 다수 있다. 여기서 자본시장법상 시세조종행위와 부정거래는 어떤 관계를 가지고 있는지가 쟁점이 되고 있다. 제178조 제1항 제1호는 그 문언이 포괄적이라 마치 제176조에서 정한 시세조종행위 규정의 일반규정인 것처럼 해석될 수도 있으나 행위의 객체와 보호법익 차원에서 차이가 있으므로 병렬적으로 해석하는 것이 타당하다고 생각한다.|ABSTRACT A Study on the Prohibition Regulations of the Fraudulent Unfair Transaction under the Financial Investment Services and Capital Markets ACT

Choi, Won Woo Dept. of Law, The Graduate School Hanyang University

This paper presents a review of controversies over legal principles and practical matters in relation to the "Regulations of Fraudulent Unfair under the Article 178", which arose after the Financial Investment Services and Capital Markets ACT came into effect in February 2009, and explored the reasonable analytical theory and application measures. Specifically, it aimed to present the measures that could ensure proper function of the "Regulations of Fraudulent Unfair Transaction under the Article 178" through the discussion on the controversies over legal matters, along with the analysis of the application-related problems that were brought up in practice, with a focus on domestic and overseas cases pertaining to recent incidents of unfair stock transaction, while comparing and reviewing the related laws and regulations in major countries, such as the United States and Japan, etc., which became the legislative model for this system. The provisions set forth in Article 178 have been applied to various types of unfair stock transaction, such as the stock broadcasting, SNS, fraudulent payment for share, algorithm transaction/dedicated line(Direct Market Access: DMA), etc., since the Financial Investment Services and Capital Markets ACT came into full force. However, those regulations have not been enforced rigorously, which has resulted in regulatory void. The Subclause 1, Clause 1 of Article 178, which are the provisions pertaining to comprehensive regulation of fraudulent unfair transaction, presents a list of abstract behavioral types and therefore may be interpreted as general provisions of the Subclause 2 to 3, Clause 1 of the same Article or Clause 2 of same Article which are more specific. However, those provisions need to be applied more extensively as they were enacted to cope with unexpected unfair behaviors. From the consideration of the controversies swirling over legal principles, it can be found that the application scope of Article 178 has provoked controversy. In relation to the application of the same Article, the conditions are deemed to be satisfied in practice only provided that the party making the unfair behavior is directly involved in the transaction. That is understandable to some degree because the intentionality can be easily established in case that the party was directly involved in transaction. However, the 'relevance in transaction' stipulated in Clause 1 of Article 178 means the causal relationship between fraudulent unfair transaction behavior and transaction of financial investment commodities, and therefore, it may be considered reasonable to expand the 'relevant party of transaction' to ordinary investors of investment commodity transaction, not confining it to the person involved in fraudulent unfair action transaction behavior. Moreover, there is an argument that the defects of the regulations/norms may be improved by encompassing the "use the undisclosed important information by the secondary and tertiary information receivers" -- which are not subject to the provisons of Article 174 of Financial Investment Services and Capital Markets ACT -- into the category of fraudulent unfair transaction act subject to the provisions specified in Article 178. However, in Korea, the punishability of the act using the undisclosed important information is rooted in the status of the concerned party(who is involved in the concerned act or behavior), not the behavioral elements of the concerned party, unlike the United States, and therefore, it is difficult to consider that the concerned party is involved in fraudulent unfair transaction, given the characteristics of such status law. In addition, there has been a controversy over whether the falsified public notice of the companies listed on the stock exchange, which include the elements of fraudulent unfair transaction, should be considered as an act of simple breach of public notice or whether it simultaneously constitutes the breach of public notice and the violation of Prohibition Regulations of the Fraudulent Unfair Transaction. In practice, the violation of the public notice is interpreted as a form of breaches violating the Prohibition Regulations of the Fraudulent Unfair Transaction, and accordingly, the falsification of public notice, etc., is punished only as the violation of the public notice. However, it may be desirable to consider the "breach of public notice" and "violation of the Prohibition Regulations of the Fraudulent Unfair Transaction" based on multiple offences as they are separate notions, unless the impact on the market is minuscule as in the case of simple error of indication and details related to reputation of company. Another controversial issue relates to whether the act of using the market(policy) information constitutes fraudulent unfair transaction. It relates to whether the prohibition of fraudulent unfair transaction can be applied to the act of using the market information that cannot be regulated by current laws and regulations, such as the acts which undermine the soundness of capital market, such as front running, scalping, receipt of information by those who are other than the primary and secondary receivers, etc. The act of using the market information has come to spotlight recently as there have been some attempts to regulate such act as a type of acts disturbing the market order. However, it is deemed improper to regulate the act of using the market information, considering the difficulty in establishing the causal relationship in the use of market information and the vast scope of application. Meanwhile, it could be found that there are many types of fraudulent unfair transaction involving the market price manipulation when the cases of fraudulent unfair transaction are analyzed. Here, the controversial issue relates to the relationship between the market price manipulation and fraudulent unfair transaction from the standpoint of Financial Investment Services and Capital Markets ACT. The Subclause 1, Clause 1 of Article 178 includes the comprehensive wordings and therefore may be interpreted as if they were the general provisions pertaining to the regulations on the market manipulation acts stipulated in Article 176. However, there is a difference in terms of the "subject of the acting person" and the "benefit and protection of the law", and therefore, it may be reasonable to interpret those provisions in parallel.; ABSTRACT A Study on the Prohibition Regulations of the Fraudulent Unfair Transaction under the Financial Investment Services and Capital Markets ACT

Choi, Won Woo Dept. of Law, The Graduate School Hanyang University

This paper presents a review of controversies over legal principles and practical matters in relation to the "Regulations of Fraudulent Unfair under the Article 178", which arose after the Financial Investment Services and Capital Markets ACT came into effect in February 2009, and explored the reasonable analytical theory and application measures. Specifically, it aimed to present the measures that could ensure proper function of the "Regulations of Fraudulent Unfair Transaction under the Article 178" through the discussion on the controversies over legal matters, along with the analysis of the application-related problems that were brought up in practice, with a focus on domestic and overseas cases pertaining to recent incidents of unfair stock transaction, while comparing and reviewing the related laws and regulations in major countries, such as the United States and Japan, etc., which became the legislative model for this system. The provisions set forth in Article 178 have been applied to various types of unfair stock transaction, such as the stock broadcasting, SNS, fraudulent payment for share, algorithm transaction/dedicated line(Direct Market Access: DMA), etc., since the Financial Investment Services and Capital Markets ACT came into full force. However, those regulations have not been enforced rigorously, which has resulted in regulatory void. The Subclause 1, Clause 1 of Article 178, which are the provisions pertaining to comprehensive regulation of fraudulent unfair transaction, presents a list of abstract behavioral types and therefore may be interpreted as general provisions of the Subclause 2 to 3, Clause 1 of the same Article or Clause 2 of same Article which are more specific. However, those provisions need to be applied more extensively as they were enacted to cope with unexpected unfair behaviors. From the consideration of the controversies swirling over legal principles, it can be found that the application scope of Article 178 has provoked controversy. In relation to the application of the same Article, the conditions are deemed to be satisfied in practice only provided that the party making the unfair behavior is directly involved in the transaction. That is understandable to some degree because the intentionality can be easily established in case that the party was directly involved in transaction. However, the 'relevance in transaction' stipulated in Clause 1 of Article 178 means the causal relationship between fraudulent unfair transaction behavior and transaction of financial investment commodities, and therefore, it may be considered reasonable to expand the 'relevant party of transaction' to ordinary investors of investment commodity transaction, not confining it to the person involved in fraudulent unfair action transaction behavior. Moreover, there is an argument that the defects of the regulations/norms may be improved by encompassing the "use the undisclosed important information by the secondary and tertiary information receivers" -- which are not subject to the provisons of Article 174 of Financial Investment Services and Capital Markets ACT -- into the category of fraudulent unfair transaction act subject to the provisions specified in Article 178. However, in Korea, the punishability of the act using the undisclosed important information is rooted in the status of the concerned party(who is involved in the concerned act or behavior), not the behavioral elements of the concerned party, unlike the United States, and therefore, it is difficult to consider that the concerned party is involved in fraudulent unfair transaction, given the characteristics of such status law. In addition, there has been a controversy over whether the falsified public notice of the companies listed on the stock exchange, which include the elements of fraudulent unfair transaction, should be considered as an act of simple breach of public notice or whether it simultaneously constitutes the breach of public notice and the violation of Prohibition Regulations of the Fraudulent Unfair Transaction. In practice, the violation of the public notice is interpreted as a form of breaches violating the Prohibition Regulations of the Fraudulent Unfair Transaction, and accordingly, the falsification of public notice, etc., is punished only as the violation of the public notice. However, it may be desirable to consider the "breach of public notice" and "violation of the Prohibition Regulations of the Fraudulent Unfair Transaction" based on multiple offences as they are separate notions, unless the impact on the market is minuscule as in the case of simple error of indication and details related to reputation of company. Another controversial issue relates to whether the act of using the market(policy) information constitutes fraudulent unfair transaction. It relates to whether the prohibition of fraudulent unfair transaction can be applied to the act of using the market information that cannot be regulated by current laws and regulations, such as the acts which undermine the soundness of capital market, such as front running, scalping, receipt of information by those who are other than the primary and secondary receivers, etc. The act of using the market information has come to spotlight recently as there have been some attempts to regulate such act as a type of acts disturbing the market order. However, it is deemed improper to regulate the act of using the market information, considering the difficulty in establishing the causal relationship in the use of market information and the vast scope of application. Meanwhile, it could be found that there are many types of fraudulent unfair transaction involving the market price manipulation when the cases of fraudulent unfair transaction are analyzed. Here, the controversial issue relates to the relationship between the market price manipulation and fraudulent unfair transaction from the standpoint of Financial Investment Services and Capital Markets ACT. The Subclause 1, Clause 1 of Article 178 includes the comprehensive wordings and therefore may be interpreted as if they were the general provisions pertaining to the regulations on the market manipulation acts stipulated in Article 176. However, there is a difference in terms of the "subject of the acting person" and the "benefit and protection of the law", and therefore, it may be reasonable to interpret those provisions in parallel.