내부자거래 규제에 관한 연구 ― 자본시장통합법을 중심으로 ―
Legal Study on the Regulation for the Insider Trading ― Focus on the Act on Capital Market and Business of Financial Investment ―
0
조회
0
다운로드
10
인용
0
참고문헌
키워드
초록
The Regulation for the Insider Trading has a long history in America. Because America had a extensive securities and capital market, the regulation theory of insider trading has been developed effectively. The Changeable developments of the regulation theory insider trading point out the scope of the regulation. The theory was made by court, but threw actor in securities and capital market in confusion. And then, in 1997, the O’hagan case made the misappropriation theory. This Theory is different from the traditional theory ; the information possession theory, the fiduciary theory. Although the misappropriation theory is the monument of the regulation theory of insider trading, This theory has defectives. Therefore, Actions like rule making, SEC rule 10⒝5-1, 10⒝5-2, are taken in America. On the other hand, in korea, the regulation for the insider trading was transplanted from America. The Regulation for the Insider Trading in Korea follow through that in America. But, the misappropriation theory is not transplanted. The Regulation theory for the Insider Trading in Korea is similar to the fiduciary theory in America. Korean securities law was enacted in 1962. The provisions of the regulation for the insider trading was imported in 1987, the prohibition of the short swing profit. In 1991, the American theory like the fiduciary theory was transplanted in Korean securities law. From 1997, the provision of the regulation for the insider trading has not been changed. That is to our disappointment. Recently, the tactics of the insider trading is much elaborate. The scope of the regulation have to be broaden. Specially, the derivatives is used in the insider trading. In that situation, we need to establish the effective regulation theory of the insider trading. Then, the Act on Capital Market and Business of Financial Investment will be enacted In 2009. This act change the The Regulation for the insider trading in Korea. The scope of the regulation for the insider trading will be broaden. That is a great change. In securities and capital market, unfair trading is regulated by the Act on Capital Market and Business of Financial Investment. This study is a legal study on the regulation for the insider trading focused on the Act on Capital Market and Business of Financial Investment.
Abstract
The Regulation for the Insider Trading has a long history in America. Because America had a extensive securities and capital market, the regulation theory of insider trading has been developed effectively. The Changeable developments of the regulation theory insider trading point out the scope of the regulation. The theory was made by court, but threw actor in securities and capital market in confusion. And then, in 1997, the O’hagan case made the misappropriation theory. This Theory is different from the traditional theory ; the information possession theory, the fiduciary theory. Although the misappropriation theory is the monument of the regulation theory of insider trading, This theory has defectives. Therefore, Actions like rule making, SEC rule 10⒝5-1, 10⒝5-2, are taken in America. On the other hand, in korea, the regulation for the insider trading was transplanted from America. The Regulation for the Insider Trading in Korea follow through that in America. But, the misappropriation theory is not transplanted. The Regulation theory for the Insider Trading in Korea is similar to the fiduciary theory in America. Korean securities law was enacted in 1962. The provisions of the regulation for the insider trading was imported in 1987, the prohibition of the short swing profit. In 1991, the American theory like the fiduciary theory was transplanted in Korean securities law. From 1997, the provision of the regulation for the insider trading has not been changed. That is to our disappointment. Recently, the tactics of the insider trading is much elaborate. The scope of the regulation have to be broaden. Specially, the derivatives is used in the insider trading. In that situation, we need to establish the effective regulation theory of the insider trading. Then, the Act on Capital Market and Business of Financial Investment will be enacted In 2009. This act change the The Regulation for the insider trading in Korea. The scope of the regulation for the insider trading will be broaden. That is a great change. In securities and capital market, unfair trading is regulated by the Act on Capital Market and Business of Financial Investment. This study is a legal study on the regulation for the insider trading focused on the Act on Capital Market and Business of Financial Investment.
참고문헌 (28)
- 김건, "미국증권법" (1996), 홍문사
- 김건식, "증권거" (2001), 두성사
- 임재, "증권규제법" (1995), 박영사
- 임재연, "증권거래법" (2000), 박영사
- Robert Charles Clark, "CORPORATE LAW" (1986), Little Brown & Company
- 강희주, "증권거래법 제188조의2 제1항에 의한 내부자 거래의 규제 - 내부자의 범위 및 정보수령자를 중심으로", 인권과 정의, (360) (2006), 대한변호사협회
- 국제금융이슈, "미국의 차이니즈월 규제 현황", 주간 금융브리프, 17(5) (2008), 한국금융연구원
- 김건식, "내부자거래규제의 이론적 기초", 증권학회지, 28 (2001), 한국증권학회
- 김병태, "관계회사와 관련된 내부자거래규정 적용상의 문제점", 증권법연구, 3(2) (2003), 한국증권법학회
- 김재형, "미국의 내부자거래규제를 위한 신규칙에 관한 고찰 - SEC Rule 10b5-1, 10b5-2를 중심으로", 기업법연구, 7 (2001), 한국기업법학회
- 김희철, "자본시장통합법상 이해상충관리시스템(Chinese Wall)의 도입방향에 관한 고찰", 경영법률, (17), 한국경영법률학회
- 노태악, "최근 판례에 나타난 내부자거래 규제의 법리 - 자본시장과 금융투자업에 관한 법률의 제정에 덧붙혀", BFL, (25) (2007), 서울대학교 금융법센터
- 정규윤, "증권시장의 신종 불공정거래행위", BFL, (25), 서울대학교 금융법센터
- 조인호, "내부정보를 이용한 내부자거래의 규제에 관한 소고 - 한국에서 입법정책상 규제해야 하는 이유와 형사책임에 관한 현행 법규정 아래에서의 몇 가지 문제를 중심으로", 비교사법, 13(3) (2006), 한국비교사법학회
- 하삼주, "내부자거래규제에 관한 비교법적 고찰", 성균관법학, 16(3) (2004), 성균관대학교
- Bainbridge, Stephen M., "An Overview of US Insider Trading Law: Lessons for the EU?, University of California, Los Angeles School of Law, Law & Economics Research Paper Series No. 05-5" (2005)
- Bauman, Todd A., "Insider Trading at Common Law" (1984), 51 U. CHI. L. REV. 838
- Boyle, James, "A Theory of Law and Information: Copyright, Spleens, Blackmail, and Insider Trading" (1992), 80 CAL. L. REV. 1413
- Brountas Jr., Paul P., "Rule 10b-5 and Voluntary Corporate Disclosure to Securities Analysts" (1992), 92 COLUM. L. REV. 1517
- Tippee Liability under the Misappropriation Theory of Insider Trading, "Old Rule, New Theory: Revising the Personal Benefit Requirement for Tipper", pp.2006, Cohen, David T.
- Davis, Craig W., "Misappropriators, Tippees and the Intent-to-Benenfit Rule - What can still Learn from Cady, Roberts" (2004), 35 SETON HALL L. REV. 263
- Ebaugh, Nelson S., "Insider Trading Liability for Tippers and Tippees: A Call for the Consistent Application of the Personal Benefit Test", TEXAS JOURNAL OF BUSINESS LAW, 39(2) (2003)
- Gilson, Ronald J, "The Mechanisms of Market Efficiency" (1984), 70 VA. L. REV. 549
- Jonathan E.A, "ten Oever, Case Note: Insider Trading and the Dual Role of Information : United States v. O’Hagan" (1997), 106 YALE L. J. 1325
- Kobayashi, Bruce H, "Outsider Trading as an Incentive Device" (2006), 40 U.C. Davis L. Rev. 21
- Madden, Thomas M., "O’Hagan, 10b5-2, Relationships and Duties" (2008), 4 HASTINGS BUS.L.J.55
- Sacksteder, Elizabeth M., "Securities Regulation for a Changing Market : Option Trader Standing under Rule 10b-5" (1988), 97 YALE. L. J 623
- Smith, Rebecca S., "O’Hagan Revisited: Should a Fiduciary Duty be Required under the Misappropriation Theory?" (2006), 22 GA. ST. U. L. REV. 1005