자본시장법상의 과징금 법제의 현황과 과제 - 공시의무위반에 대한 과징금 부과를 중심으로 -

Abstract

Today, penalty surcharge system is important as a means of securing effectiveness for administration. Penalty surcharge on violation in public disclosure also contributes to the aim of Financial Investment Services and Capital Market Act which tries to ensure fairness of securities issuance and securities trade and other dealings. It can achieve disincentive effect against disclosure violation without the load of criminal sanction, and can enhance effective enforcement in being combined with other sanction means, and it can procure the immediacy and efficiency of execution by leading of Financial Services Commission. Although more than a decade have passed since penalty surcharge system had been introduced in securities exchange act, there are so few research about it. Therefore, this article introduce U.S and Japanese, and then produce following ways of improving the system. First, there must be a objective standard to decide on whether penalty surcharge will be imposed. Second, the relationship of penalty surcharge and criminal sanction and administrative sanction is set up to prevent attack called as over punishment. Third, legal basis about reduction/exemption grounds of penalty surcharge must be cleared. Fourth, standard amount to impose as penalty surcharge should be organized logically. Fifth, the standard of material facts must be prepared. Finally, there must be market abuse provision and based provision to adjust penalty surcharge and fine as shown in examples of United Kingdom and Japan.