일본의 개정금융상품거래법상 공모증자 내부자거래에 관한 규제

Abstract

The Securities and Futures Commission of Korea decided on 3 December 2014 to file a complaint against Gamevil Inc. with the Prosecutor's Office. One may consider the decision reasonable; however, the author finds that a close look at Article 174 of the Financial Investment Services and Capital Markets Act of 2009 (Capital Markets Act) suggests that multiple different interpretations of its key provisions are quite possible, foretelling fierce legal battles on both sides of the issue. The article’s Provision (1) and Provision (2), which respectively hold legally responsible anyone who uses any material nonpublic information or nonpublic information on initiation or ending of a takeover bid in trading or any other transaction involving specific securities, etc. and anyone who discloses such information to and thus allows another person to use such information, demand well informed recognition and high levels of keenness on both sides of such cases. From this perspective, the author suggests that the scope of the regulation intended by the Capital Markets Act is too narrow and questions whether the CFO and IR head of Gamevil who disclosed the related information to others should be held legally responsible. Having experienced similar cases, Japan revised its Financial Instru- ments and Exchange Law in 2013 and extended the scope of insider trading to include both disclosure of information related to capital increase by public offering and solicitation of trading based on such information. The reasons for Japan taking this approach are as follows: 1. An analysis of prosecution cases involving recommendation for monetary penalty reveals that the number of violations by the recipients (tipees) of nonpublic information from either company insiders or those involved in public offerings has steadily increased over the years and even inappropriate disclosure of information related to capital increases by public offering by the sales representatives of underwriters has occurred frequently. 2. Agreeing that without such information sharing it would be impossible for any insider trading by the tipees to occur, the country’s lawmakers are convinced that prohibiting insiders from sharing insider information with others is essential for the prevention of insider trading. Through these measures to extend the scope of insider trading regulation, Japan expects to root out insider trading from its financial markets. In addition, Japan had adopted the policy that in case any actual insider trading occurs based on such insider information, it shall be criminally prosecuted. There is no doubt that all these efforts are intended to restore public trust in the country’s financial markets. The author concludes that it is time for Korean policymakers to consider seriously the adoption of this rather strict Japanese policy (at least partially), if they recognize that insider trading has harmful effects on Korea’s financial markets.