증권사기로 인한 민·형사책임에 있어서의 손해와 이익의 산정

Abstract

The Act of Capital Market and Investment Banking provides criminal and civil remedies as well as administrative enforcement. Principally securities frauds without any results are prohibited as dangerous acts. But it is necessary to establish losses for remedies in civil actions and the defendant’s profits should be proved for weighted penalties in criminal cases. Previously the courts were obscure on how to calculate the profits in criminal cases. However in 2009 the Supreme Court’s decision has made clear that it means the profits earned or losses avoided in causation with the peril of wrongdoing as Criminal Code Sec. 17 provides. So the decision makes it necessary to prove the profits earned or losses avoided specifically in causal connection with the wrongdoing in criminal cases as well as civil cases. However in reality the prices of securities in securities exchanges are constantly changing by various factors and do not necessarily reflect the fundamental values of the securities. We can not say that all informations are provided publicly and reflected into the prices and investors always act rationally. This is the issue that we should decide by taking the behaviors of markets and investors into consideration upon the general theories of causation and normative consideration such as the purposes of the Act should also be put in it. There have been debates on the fraud on the market theories based on efficient capital markets and the use of event studies as a statistical method. But the event studies have seldom been accepted in our courts. The United States Supreme Court suggested more clear criteria on this issue in Halliburton case in 2014 reflecting the debates since Basic decision in 1988. This Article discusses how to establish losses and profits in causation with securities frauds in civil and criminal cases with comparative analysis and suggest some rational calculations reflecting the reality of securities markets and the purpose of the Act.