증권불공정거래 규제영역에서의 공익소송 연구－현행 증권불공정거래 규제체계에 대한 비판적 검토 및그 보완을 위한 부권소송의 도입방안 연구－

Abstract

Here, I have focused more on an enforcement system than present regulations on unfair securities trading. It is found that our present system has a weak point because it depends on criminal punishment which needs long time to proceed and which has not enough effect on regulating unfair securities trading. In a civil liability, it is little probable to file a complaint to compensate damages since a plaintiff’s damage is limited to an actual damage while this actual damage is disseminated to many potential plaintiffs. As a countermeasure for this, there has been a discussion of weighing of criminal punishment to rationalize it and in a civil liability, an introduction of punitive damages or civil penalties and a change of securities class action act have been discussed. However, considering a civil liability, introduction of punitive damages is not feasible because Korean damage compensation system is based on actual damage compensation. Regarding a broadening of class action and civil penalties, they still have serious problem for a probability to file a suit and for compensation of damages to real victims. In this regard, as one of public actions, a parens patriae action can be a way to supplement our enforcement system for unfair securities trading. A parens patriae action can raise possibilities to file and proceed law suits for a civil liabilities. Though a parens patriae action is not enacted in our legal system, however, considering its benefits, we have to consider to legislate it seriously. In a procedure of this enactment, there will be a resistance which we already experienced in an introduction of securities class action. But it should be overcome to make up for a present enforcement system. Additionally, this can be an important function of new bureau of protection on financial consumers. In this paper, I suggests to introduce a parens patriae actionin a way of revision of Securities Class Action Act, not a way of enactment separately. And regarding expected issues for a legislation, ‘who will be a plaintiff,’ ‘what kinds of cases should be filed,’ and “how does the court decision effect on the others” are discussed. Lastly, I summarized how to revise present Securities Class Action Act in depth.