내부자거래에 관한 연구

Abstract

자본시장은 다양한 시장참여자들의 투자의 방법으로 이용되고 있다. 기관투자자들은 자산 운용의 한 방법으로 또 개인투자자들은 재산 증식의 방법으로 자본시장을 이용하고 있다. 이러한 자본시장에서 공정한 시장질서가 확립되지 않고 기관투자자이건 개인투자자이건 지켜야 할 기본적인 질서를 지키지 않는다면 주식시장이 건전한 투자처로서 자리 잡기 힘들 것이다. 자본시장에 기본적인 질서를 확립하기 위하여 우리나라는 과거에는 증권거래법, 현재는 자본시장과 금융투자업에 관한 법률 등을 통해 자본시장에서의 거래행위가 적정한 법의 테두리 내에서 이루어질 수 있도록 규제하고 있다. 이러한 규제들 중 대표적으로 내부자거래 규제와 시세조종행위 규제가 있다. 시세조종행위와 비슷한 유형의 행위인 부정거래행위 또한 금지되는 행위 중의 하나이다. 자본시장에서 인위적으로 주가를 변동시켜 이익을 취하는 시세조종행위나 기업의 내부자로서 일반투자자보다 먼저 상장기업의 사업내용이 공시되기 전에 동 정보를 이용하여 해당 기업의 주식을 거래함으로써 이익을 취득하는 내부자거래행위는 가장 대표적인 증권범죄들이다. 내부자거래를 규제하는 근거에 대해서는 내부자거래 규제가 처음으로 시작된 미국에서 다양한 학설들이 발전․전개되어 오고 있다. 우선 과거의 고전적인 공시 혹은 거래자제이론(Disclose or Abstain Rule)으로부터 시작하여 충실의무이론(Fiduciary Duty Theory)과 최근의 정보유용이론(Misappropriation Theory) 등이 그것이다. 한편 내부자거래에 대해서 이를 합법적인 것으로 보려고 하는 Henry Manne 교수의 내부자거래 비규제론도 존재한다. 내부자거래의 처벌에 있어서 충실의무이론이 가장 합리적인 이론임을 상장법인의 구조 등을 통해서 논증하는 한편, 내부자거래 비규제론에 대해서는 Titanic호 사건을 토대로 이를 반박하고자 한다. 미국의 경우 증권거래법(Securities Exchange Act) 10(b)와 증권거래위원회(Securities Exchange Commission) rule 10b-5의 1개의 조문으로 성격이 다른 두 개의 증권범죄인 내부자거래와 부정거래행위를 규율하는데 이로 인하여 해석상의 문제점이 발생한다. 일반투자자에 대한 충실의무가 존재하지 않는 외부자의 부정거래행위에 대해 충실의무위반을 묻는 O'Hagan 사례가 바로 그것이다. 우리나라의 경우 내부자거래와 부정거래행위를 별도의 조문으로 두어 처벌하고 있으나 미국에서의 내부자거래와 관련한 해석론을 무조건 받아들이고 양 행위의 본질을 정확하게 이해하지 않을 경우 미국에서와 같이 내부자거래와 부정거래행위의 관계 등에 대하여 정확한 해석이 곤란할 수 있다. 또 정보수령자를 무조건 처벌하는 현행 법제는 공범론의 입장에서 볼 때 기능적 행위지배가 없는 정보수령자의 처벌과 처벌을 두려워하는 정보수령자가 내부자와 결탁하여 조사와 수사를 방해하는 부정적인 측면이 있어 이를 합리적으로 해결하기 위한 방법이 필요하기 때문에 정보수령자를 단순한 정보수령자와 기능적인 행위지배가 있는 정보수령자로 분류하여 단순한 정보수령자에 대해서는 형법적인 접근이 아닌 행정제재로 처리하여야 필요성이 있음을 주장하고자 한다. 또한 부정거래행위의 유형화 작업을 통해 내부자거래의 규제범위를 넓히지 않고서도 이를 규율할 수 있는 해석론을 살펴보고 부정거래행위와 내부자거래가 양립이 가능함을 이론적으로 규명하고자 한다. 이 논문은 내부자거래의 본질을 정확하게 규명하고 이에 따른 정보수령자 처벌의 문제점을 부각시키는 한편, 부정거래행위의 유형화 작업 등을 통해 내부자거래와 부정거래행위의 관계를 명확히 하여 조사 및 사법당국에 의사결정상의 지침을 제공하고자 하는 것이 그 목적이다. 또한 우리나라 법제의 정확한 해석을 통해 지금까지 내부자거래의 해석과 관련하여 미국의 이론과 판례에 의존하여 왔던 관행을 타파하는 데도 그 목적이 있다.|The Securities Transaction Act was established in 1962 to deal with illegal behaviors such as market manipulation and insider trading in the securities market. However, after the Financial Investment Services and Capital Markets Act was promulgated on February 4, 2009, information-based market manipulation became an independent clause. I would like to classify market manipulation involving real transaction as behavior based market manipulation and manipulation involving spreading rumor or other methods not mainly involving securities transaction of the securities as information based market manipulation. Even if we had punished the market manipulators and insider traders in the securities market by the Securities Transaction Act there still was some need to give an independent clause for the behavior such as spreading rumors and disclosing false facts towards the securities market for the purpose of price manipulation. In this sense, the Financial Investment Services and Capital Markets Act filled the long felt loophole in punishing information-based market manipulation. In the case of United States, insider trading and information based market manipulation are regulated under the same article, Securities Exchange Act 10(b). Under the power delegated by the Securities Exchange Act the Securities Exchange Commission enacted its SEC rule 10b-5 to regulate insider trading and information based market manipulation. The main problem of dealing with insider trading and information based market manipulation arises from conflicting interpretations in applying the articles. Lawmakers and lawyers acknowledged this problem and tried to create an Act which would define the notion of insiders and the illegal behavior of the insiders as well as outsiders to little avail. It is quite right that insider trading and information based market manipulation have some similar intrinsic nature. The securities crimes are thought to be defrauding the counterparts of the transaction which is common characteristic of both insider trading and information based market manipulation. But there is a notable difference between insider trading and information based market manipulation. Insider trading is a crime which breaches the fiduciary duty towards the general shareholders. However, in case of information based market manipulation it does not breach the fiduciary duty towards general shareholders. It is punished because it undermines the market integrity by illegally obtaining and using material non-public information regardless of the wrongdoer's fiduciary duty towards the general shareholders. Because the insider trading and information based market manipulation were dealt in the same article, this gave the judges a perception that all of the securities crimes related to using material non-public information to have fiduciary duty even if it didn't have any meaning to compose a crime such as in the O'Hagan case. Fiduciary duty towards the source of information is not a prerequisite in punishing the perpetrator in the case of information based market manipulation. They are punished because they had obtained the material non-public information illegally and used it and thereby undermining the integrity of the securities market. This kind of confusion is not rampant in Korea but because we have received the system of punishing the securities crime from the United States there seems a little bit of mismatches in interpreting our Financial Investment Services and Capital Markets Act. The first problem is that there is no logical explanation for punishing the tippees. Since the verdict given by Dirks v. SEC the tippees are thought to assume the responsibility of the tipper who is an insider. However, the fact is that the tippees do not have any kind of fiduciary duty towards the general shareholder and they even didn't get the information by their own illegal effort. If we suppose a case that the tippee received a false information by the insider who tried to disclose false information and thereby get profit, it becomes more sure that the tippee can't just assume the responsibility of the tipper that easily. After the promulgation of the Financial Investment Services and Capital Markets Act it is also needed to categorize information based market manipulation for the convenience of the court to consider whether the incident falls to the information based market manipulation or not. To do this it was needed to refer to the cases of the United States which didn't fall to the insider trading prohibition. One good thing in our system in punishing the securities crimes compared to that of the United States is that the articles to punish the perpetrators in the securities market are quite logically located and composed. But the fact is because our Securities related Act was mainly affected by the United States there seems to be a confusion in interpreting the wrongdoing in the securities market. I made it an example to show that insider trading and information based market manipulation can happen at the same time by the upper leveled staffs and lower leveled staffs of the listed market and I think this will help to understand the main difference in interpreting the securities crime in Korea and in the United States. The fiduciary duty theory is the best theory to explain insider trading breaches. United States' legal system is too confused even to the lawmakers and lawyers because only one article deals with insider trading and information based market manipulation. We have to take this into regard in interpreting insider trading and information based market manipulation and the long effort of the United States' struggle of interpreting the SEA 10(a) and SEC rule 10b-5 gives lots of help in defining the insider trading and information based market manipulaton in Korea. I wish this dissertation gives help to the ones who try to understand the intrinsic nature of insider trading and I also want the Securities Investigation Departments of the FSS to refer this dissertation in interpreting the insider trading regulations and information based market manipulation during their investigation of the securities crimes.; The Securities Transaction Act was established in 1962 to deal with illegal behaviors such as market manipulation and insider trading in the securities market. However, after the Financial Investment Services and Capital Markets Act was promulgated on February 4, 2009, information-based market manipulation became an independent clause. I would like to classify market manipulation involving real transaction as behavior based market manipulation and manipulation involving spreading rumor or other methods not mainly involving securities transaction of the securities as information based market manipulation. Even if we had punished the market manipulators and insider traders in the securities market by the Securities Transaction Act there still was some need to give an independent clause for the behavior such as spreading rumors and disclosing false facts towards the securities market for the purpose of price manipulation. In this sense, the Financial Investment Services and Capital Markets Act filled the long felt loophole in punishing information-based market manipulation. In the case of United States, insider trading and information based market manipulation are regulated under the same article, Securities Exchange Act 10(b). Under the power delegated by the Securities Exchange Act the Securities Exchange Commission enacted its SEC rule 10b-5 to regulate insider trading and information based market manipulation. The main problem of dealing with insider trading and information based market manipulation arises from conflicting interpretations in applying the articles. Lawmakers and lawyers acknowledged this problem and tried to create an Act which would define the notion of insiders and the illegal behavior of the insiders as well as outsiders to little avail. It is quite right that insider trading and information based market manipulation have some similar intrinsic nature. The securities crimes are thought to be defrauding the counterparts of the transaction which is common characteristic of both insider trading and information based market manipulation. But there is a notable difference between insider trading and information based market manipulation. Insider trading is a crime which breaches the fiduciary duty towards the general shareholders. However, in case of information based market manipulation it does not breach the fiduciary duty towards general shareholders. It is punished because it undermines the market integrity by illegally obtaining and using material non-public information regardless of the wrongdoer's fiduciary duty towards the general shareholders. Because the insider trading and information based market manipulation were dealt in the same article, this gave the judges a perception that all of the securities crimes related to using material non-public information to have fiduciary duty even if it didn't have any meaning to compose a crime such as in the O'Hagan case. Fiduciary duty towards the source of information is not a prerequisite in punishing the perpetrator in the case of information based market manipulation. They are punished because they had obtained the material non-public information illegally and used it and thereby undermining the integrity of the securities market. This kind of confusion is not rampant in Korea but because we have received the system of punishing the securities crime from the United States there seems a little bit of mismatches in interpreting our Financial Investment Services and Capital Markets Act. The first problem is that there is no logical explanation for punishing the tippees. Since the verdict given by Dirks v. SEC the tippees are thought to assume the responsibility of the tipper who is an insider. However, the fact is that the tippees do not have any kind of fiduciary duty towards the general shareholder and they even didn't get the information by their own illegal effort. If we suppose a case that the tippee received a false information by the insider who tried to disclose false information and thereby get profit, it becomes more sure that the tippee can't just assume the responsibility of the tipper that easily. After the promulgation of the Financial Investment Services and Capital Markets Act it is also needed to categorize information based market manipulation for the convenience of the court to consider whether the incident falls to the information based market manipulation or not. To do this it was needed to refer to the cases of the United States which didn't fall to the insider trading prohibition. One good thing in our system in punishing the securities crimes compared to that of the United States is that the articles to punish the perpetrators in the securities market are quite logically located and composed. But the fact is because our Securities related Act was mainly affected by the United States there seems to be a confusion in interpreting the wrongdoing in the securities market. I made it an example to show that insider trading and information based market manipulation can happen at the same time by the upper leveled staffs and lower leveled staffs of the listed market and I think this will help to understand the main difference in interpreting the securities crime in Korea and in the United States. The fiduciary duty theory is the best theory to explain insider trading breaches. United States' legal system is too confused even to the lawmakers and lawyers because only one article deals with insider trading and information based market manipulation. We have to take this into regard in interpreting insider trading and information based market manipulation and the long effort of the United States' struggle of interpreting the SEA 10(a) and SEC rule 10b-5 gives lots of help in defining the insider trading and information based market manipulaton in Korea. I wish this dissertation gives help to the ones who try to understand the intrinsic nature of insider trading and I also want the Securities Investigation Departments of the FSS to refer this dissertation in interpreting the insider trading regulations and information based market manipulation during their investigation of the securities crimes.