자본시장법 제178조의 ʻ부정거래ʼ에 관한 연구 －대법원 2011.10.27. 선고 2011도8109판결을 중심으로－

Abstract

In order to effectively regulate various unfair transactions in the capital market, a catch-all provision such as Article 178(1)1 of the Financial Investment Services and Capital Markets Act (FISCMA) is necessary. Due to its legislative limits and technical shortcomings, however, the interpretation and application of the comprehensive catch-all provision often requires involvement of financial supervisory authorities and court. For instance, with respect to "an unfair transactions of utilizing an unfair means" in Article 178(1)1 of the FISCMA, the Supreme Court of Korea interpreted "an unfair means" very broadly to include any means that are judged to be unfair by the social norms. In the same context, the Supreme Court has ruled various transactions as unfair trading including: i) using foreigner-exclusive accounts to create a false appearance of a foreign investor making investments, ii) making a public disclosure that a company has succeeded in selling new shares, even though the new shares were bought by its related parties in the borrowed names, etc. In addition, the Supreme Court decided that a series of criminal conducts can be enforced as an inclusive crime, if they constitute the violation of Article 176 and Article 178 of the FISCMA. If a single criminal conduct violates both Articles 176 and 178, according to the Supreme Court's opinion, these articles are in a special-general relation and Article 176 will be applied (rule concurrence). In the application of Articles 178, the Supreme Court ruled that a reasonable causation should be clearly established between profits accrued or losses avoided and an unfair transaction. However, if this illegal profit requirement is interpreted in such a strict manner, satisfying the requirements for the various unfair transactions is hardly possible. As such, the FISCMA needs to be improved to clearly stipulate the way how profits accrued or losses avoided are measured.