일본의 내부자거래 규제의 강화와 법적 시사점

Abstract

With respect to insider trading, Japan has not regulated the disclosure of material inside information itself, although, as a rule, insiders are prohibited from trading to take advantage of material information that they have acquired. However, Japan adopted regulations on the disclosure of inside information and trading recommendation, because various insider trading cases have been recently occurred in which transactions were executed by a third party who were tipped by the insider(Article 167-2 of the Financial Instruments and Exchange Act). At the same time, in an effort not to impose any undue burden or restriction on business activities, Japan cautiously designed the scope of those regulations by introducing the "purpose" criteria. They also introduced the "trading" criteria, so that insiders become subject to criminal punishment or monetary penalty only when material insider information or trading recommendation affects actual investment decisions. In Korea, the use of material insider information by its recipients has been increasing. As such, it is worth considering treating information disclosure and trading recommendation separately from Article 174 of the Financial Investment Services and Capital Market Act which governs the use of material non-public information, as is the case in many advanced jurisdictions. As in Japan, the "subjective purpose" criteria appears to merit consideration, as it would help ensure the new approach does not impose any undue burden or restriction on business activities. However, the same is not the case for the "trading" criteria, as Korea already regulates activities which make a third party use non-public information.