자본시장법상 시장질서 교란행위 － 구성요건의 분석과 주요 위반사례의 검토 －

Abstract

On 10, December, 2014, the Korean National Assembly adopted the new market abuse law by approving the amendment to the The Korean Capital Market and Financial Investment Business Act (“Capital Market Act”). This regulation came in effect on July 1, 2015. It aims to increase market integrity and investor protection, enhancing the attracti- veness of capital market in Korea. The market abuse regulation applies to two types of conducts: (a) market disturbance on the basis of non-public information; and/or (b) market disturbance on the basis of manipulating market price. Why does Korean legal authority need a new market abuse regulation? The response to this question is very simple. In an age of globalism, many European countries have effectively implemented their domestic legislations following to Directive 2014/57/EU of the European Parlia- ment and of the Council of 16 April 2014 on criminal sanctions for market abuse (‘Market Abuse Criminal Sanctions Directive’), Com- mission Implementing Directive (EU) 2015/2392 of 17 December 2015 on Regulation (EU) No 596/2014 of the European Parliament and of the Council as regards reporting to competent authorities of actual or potential infringements of that Regulation, as well as the new market abuse regime based on Regulation (EU) No 596/2014 of the European Parliament and of the Council of 16 April 2014 on market abuse (‘Market Abuse Regulation’). This trend may be the answer to this question, but this paper does not examines comparative analysis of these legislations. More importantly, it has been recognized the need for new regulation to prevent loopholes of the previous law (i.e., the previous law was powerless against sub-tippee and needed strict burden of proof for criminal liability) and, to effectively deal with new types of unlawful securities trades in a world which seems to change very quickly in the financial environment using new technological devices with computing technology. Although the previous law already contained prohibitions of unlawful insider-dealing by undisclosed (non-public) inside information (Sec. 174), market manipulation (Sec. 176) and a comprehensive anti- fraud provision (Sec. 178, catch-all clause), which impose criminal sanctions including pecuniary punishment, the new market abuse regulation imposes only administrative pecuniary sanctions, to spell out the power on the part of the Financial Supervisory Commission (FSC). Under the new regime, serious forms of market abusive conducts should be charged criminal sanction only because this measure is expressly stipulated in the Sec. 178-2 (2), and therefore, the current Korean Capital Market Law does not allow the administrative and criminal sanctions to coexist. This paper is mainly focusing on analysis of the key components of the requirement for market abuse regulation codified in the Section 178-2 of the Capital Market Act, as well as the relevant cases in Korea. For example, recently Samsung Securities Co., failed to operate with due internal standards for safe electronic financial transactions, which had resulted in a divided fiasco last month involving the trade of unauthorized shares worth tens of billions of won. In Samsung Securities Co. case above, 21 employees were imposed administrative fines based on violations of market abuse regulation under the Korean Capital Law for deliberately attempting to sell unauthorized shares falsely delivered to them as dividends. In addition, some employees were charged criminal sanctions by the court decision in April, 2019. In this regard, this paper also poses the problems that the new market abuse regulation gives rise to, and tries to provide any feasible alternative measure thereof for effective application and enforcement.