자본시장법상 불공정거래 규제에 관한 비교법적 검토 및 제언 - 자본시장과 금융투자업에 관한 법률 개정안을 중심으로 -

Abstract

Unfair trading in terms of Capital Markets Act should be strictly regulated as they undermine the order of the market and cause significant harm to numerous innocent investors. However, recent cases of unfair trading, such as the ‘SG Securities crash incident' and the ‘KB Bank employee's 12.7 billion won speculative profit case,' continue to occur with inadequate sanctions in place. Until now, strict burden of proof on prosecutors to penalize Unfair trading has led to low prosecution rates. Even when a guilty verdict is reached, many cases resulted in probationary sentences due to the difficulty in calculating the amount of profit gained or loss avoided. Furthermore, as fines can only be imposed for market abuse conduct despite the considerable lack of timeliness in regulation due to prolonged criminal procedures, effective sanctions have not been implemented. To compensate for these limitations, on June 30, 2023, the 「Partial Amendment Bill for Financial Investment Services and Capital Markets Act」(Bill No. 2122985), which clarifies the method of calculating profit gained or loss avoided, allows fines to be imposed on the three types of unfair trading, and reduces the sentences of voluntary reporters, was passed by the National Assembly of the Republic of Korea and will be implemented in January 2024. The amendment is favorable in that it introduces financial penalty for all unfair transactions, which is in line with the regulatory systems of major countries such as the United States, Japan, and the United Kingdom, and clarifies the method of calculating profit gained or loss avoided, which increases the possibility of proving causation. However, the amendment still fails to set the upper limit of the penalty appropriately by assuming a high probability of detection, and it may violate the principle of proportionality by setting the upper limit at 4 billion won even if the amount of profit or loss avoided by the violator does not exist or is difficult to calculate. Furthermore, the definition of profit gained or loss avoided as “transactions made through the offense" instead of "transactions related to the offense" as used in case law may unnecessarily narrow the scope of profit gained or loss avoided. Additionally, the amendment lacks consideration for various administrative sanctions and victim relief systems. The United States utilizes a combination of monetary sanctions, such as civil penalties and disgorgement of profit gained or loss avoided, and non-monetary sanctions, such as injunctions, cease and desist orders, bars and suspensions. The U.S. also utilizes a settlement system to ensure swift and efficient sanctions and a FAIR Fund to directly recover damages from victims. Japan utilizes administrative sanctions more than criminal sanctions, and has a specialized investigative division to ensure the efficiency of sanctions. Major European countries, including the United Kingdom, actively utilize financial penalty system and various administrative measures like asset freezing to ensure the effectiveness and enforcement of sanctions. This paper has compared foreign legal systems and reviewed approved amendment to suggest specific improvements. These include revising the wording related to profit gained or loss avoided calculation method, removing unnecessary restrictions in the Capital Market Investigation Practice Regulations, inclusion of gains belonging to third parties as profit gained or loss avoided of the offender, revising the upper limit of financial penalty based on the probability of detection and the principle of proportionality, and avoiding the possibility of double punishment in the application of criminal and administrative sanctions. In addition, It also proposes to provide financial authorities with a range of administrative sanctions, such as asset freezes, bars and suspensions, expand the use of consent order modeled after the U.S. settlement system, and establish a victim relief system modeled after the U.S. FAIR Fund. In particular, it sought to enhance the value of the study by proposing a number of specific and original amendments to the Capital Markets Act, rather than simply recommending their introduction.