자본시장 불공정거래범죄의 부당이득 산정기준

Abstract

Under Korean financial investment services and capital market act, capital market act for short, regulations of unfair trading and its criminal responsibilities has a few features, compared to that in the U.S., Japan, etc. The fundamental purpose of regulations in unfair tradings under the act is to keep trust on capital market and to protect law-abiding investors. Realizing the purpose faithfully requires principles to be established as clearly as possible, which enable to hold law-breakers to account for the violation-led profits and losses avoided(namely Calculating inappropriate profits accrued from unfair tradings). The criteria in determining the amount of inappropriate profits (including loss avoided) are a ‘balance between crimes and criminal punishment, responsibility and cause’. The amount of inappropriate profits includes not only profits directly gained from violations, but also those indirectly. The criteria are closely related mutually. The most important one among the criteria is the causal relationship between crime and the profit gained or the loss avoided. The balance between crime and criminal punishment, and responsibility supplements the relationship. The inappropriate profits come after total revenues by violations make a deduction from total cost for the tradings. Depending on the type of the violation such as uses of material non-public informations, market price manipulations and fraudulent transactions, the timing to use the criteria for profits realized and profits non-realized differs. In addition, if the violation combined with a third factor affected the market price, which one affected more to the price should be identified. In some cases, the amount of inappropriate profits cannot be calculated. When the amount isn’t clear, the principle of criminal law, ‘In dubio pro reo’ applies, which means that a defendant may not be convicted by the court.