신문보도에 의한 내부 중요정보의 공개 ― 2016년 11월 28일 일본 최고재판소 결정을 중심으로 ―

Abstract

Nonpublic material information, one of corpus delicti of insider trading, refers generally to the material information that the public does not yet have access to. Corporate insiders cannot trade in their own securities until material information about their corporation is disclosed to the public. Official disclosure of material insider information results in the cancellation of regulation on insider trading. Even though some newspapers carries a report about the insider information of a certain company based on resonable assumption, the report can not be official disclosure. Moreover, outside investors need some time to be aware of the disclosed information. Only if insider information have to be disclosed according to the procedures and methods prescribed by a relevant law, the disclosure can be official. Official disclosure helps outside investors have almost the same awareness as insiders and make an investment decision. Supreme Court of Japan ruled that “even if a newspaper scooped sider information based on an anonymous source, but the scoop can not be official disclosure, so regulation on insider trading still apply to corporate insiders.” The ruling of Japan’s Supreme Court regarding disclosure of insider information can be used in the interpretation of the provisions for insider trading prescribed by Korea’s Financial Investment Services And Capital Markets Act. Decision of Japan’s Supreme Court pertaining to insider information was not judicial interpretation on official disclosure but addressed an issue of the fact finding. To make clearly distinguish the scope of regulation, Japan’s Financial Instruments And Exchange Act enumerates the lists of not only insiders and material information but how to disclose. Japan adopts positive list system in regulation on insiders. In case of Korea, however, Financial Investment Services And Capital Markets Act enumerates the lists of how to disclose like Japan’s case but adopts negative list system regarding the scope of material information. As materiality determines whether the insider information needs to be disclosed or not, materiality determining requirement and non-disclosure requirement have to be structurally aligned. Moreover, to dispel worries of excessive regulation, the detailed contents and methods of official disclosure should not be restricted like the EU legislation. Comprehensive regulation on materiality determining requirement and publicity requirement is desirable to make accurate judgements on official disclosure according to various different case of each corporation.