자본시장법상 불공정거래행위에 대한 과징금제도의 도입

Abstract

In the capital markets, there is a high level of asymmetry of informationdue to none-face-to-face transactions among an unspecified number ofparties. Regardless of continuous efforts by financial supervisory authority toremove unfair transactions in the capital markets, unfair trade practices arestill prevalent. In addition, the types of violations are becoming morecomplex and cunning, as well as increasing in numbers. In order to cope with unfair transactions, the Capital Markets andFinancial Investment Services Act(hereinafter called as ‘the Act’) has sanctionsagainst violations as well as disclosure regulations. Recently, there is acontroversy because the Act imposes financial penalty in violating disclosureregulations, but not in unfair transactions. For the effective regulations in the capital markets, there are numeroussteps that we must go through. First of all, we need to block all possibilityof violations beforehand needed. Second, strict sanctions are needed. Fromthe perspectives of the crime economy, if committing a crime or an illegaltransaction has more benefits than its penalties, there would be a lot moreunfair transactions. However, if the penalties of illegal transactions weremuch more severe than their profits, unfair trade practices can be smallerbecause the economic incentives are too low. Financial penalty systems against unfair transactions exist in the US, UK,and Japan. Thus, Korea should introduce financial penalty in order to dealwith several types of unfair transactions effectively. Finally, introducing theconcept of ‘market abuse’ under the proposal by FSC and Department ofJustice, dated on April 18, 2013, may cause confusion with the meaning of‘unfair trading’ under Article 178 of the Act. Therefore, the proposal must berevised.