대향범에 대한 공범규정 적용의 타당성 — 자본시장법상 미공개정보 이용행위에 대한 처벌규정을 중심으로 —

Abstract

This article deals with a few issues in accomplice liability. In some provisions of criminal code, there is a sort of crimes which cannot be committed without aid of an accomplice. In such crimes, it is hard to apply general rule of criminal law about the accomplice liability. Nevertheless, if we adhere to this rule without exception, some problems arise, which this article deals with. Regarding those problems, we especially study the insider trading provision of the Financial Investment Services and Capital Market Act. In Korea, the article 174 (1) of that act provides that any person who is informed of material nonpublic information related to the business of a listed-corporation in the course of performing his duties, and those who are informed of such information from that person shall not use such information in trading or any other transaction involving specific securities, etc. or allow another person to use it. Regarding this article 174 (1), if tipper want to allow another person to use the nonpublic information, tippee's action is necessary. Because of this cooperation structure, some inequalities of punishment happen to the second-tier tippee. To emphasize on those problems, we compare the liabilities of the second-tier tippees in Supreme Court Decision 2000Doh90 with in Supreme Court Decision 2008Doh6953. In conclusion, I propose that the second-tier tippee should be punished if he actively demands for nonpublic information from tipper.