자본시장 불공정거래로 인한 손해배상 활성화

Abstract

Financial Investment Services and Capital Markets Act(hereafter "the Act") provides that such the unfair trades as the abuse of non-publicized crucial information(art. 174 of the Act), the operation of market prices(art. 176 of the Act), unfair competion(art. 178 of the Act) be punished so as for the actor to be in prison up to 10 years or fined up to five hundred million(art. 443 of the Act); the Act also provides that the victims of the unfair trades have access to damages(arts. 175, 177, 179 of the Act). Such regulations in both criminal as well as civil dimensions have been continually reinforced in the process of reforming the old Securities Transaction Act(s) as well as establishing the Act; in addition, Act on Securities-Related Class Actions was introduced to come into force on January 1, 2005. However, the capital market nowadays faces, notwithstanding all the legislatorial endeavors mentioned in the above, continuously increasing number of unfair trades by the hands not only of securities specialists and but also of individual investors. With the increasing number of unfair trades, the number and amount of victims are on the increase in the direct proportion; the victims actually seldom reach to actions for damages to be fully compensated, which witness that Act is not playing its role in spite of the codification of damages. This article scrutinizes the actualities of damages actions, analyses the causes for their under-utilization and attempts to find how to make them work better. Especially, the author tries to check whether and how far the Market Oversight Commission of Korea Exchange, as institution set up for the fairness, reliability and efficiency fo the capital market, could contribute to facilitating damages against unfair trades.