현실매매에 의한 시세조종행위의성립요건에 관한 고찰 －서울중앙지방법원 2011.1.28. 선고 2010고합11판결을 중심으로－

Abstract

Manipulation caused from the real sales under the 176(2)(i) of Financial Investment Services and Capital Markets Act (FSCMA) is the most common maipulation which occurs in the market. Therefore in order to protect the investors and to establish healthy market transaction, it is important to closely regulate manipulation caused from the real sales. However, since market is based on the real sales, it will be difficult to distinguish with the formal transaction. Therefore, by closely regulating manipulation caused from the real sales, it could possibly constrict the formal transaction as well. Also, in US and Japan, in order to be maipulation caused from the real sales, maipulation must have occurred within the series of transaction. However, under the FSCMA, it simply stated 'the purchase or sales of such security', thus it raises some interpretation issues. Recently, the lower court acknowledged that one time sell which caused a drop in price is also a manipulation caused from the real sales. The transactor in this case argued that one time sell does not fall under the 'for the purpose of inducing the purchase or sale of such security by others' and 'raising or depressing the price of such security' requirements. however, the court did not agree with the argument. Maipulation caused from the real sales only occurs when the act is 'for the purpose of inducing the purchase or sale of such security by others' and 'for raising or depressing the price of such security', therefore, when exchange distribution happens on listed securities which causes manipulation in spotᐨlinked futures trading and brings price changes in listed securities on KRX, it could be considered as a single marketᐨmaking action. All problems mentioned above could be concluded as a discussion on the interpretation on the 'for the purpose of inducing the purchase or sale of such security by others' requirement. Even though it is very hard to prove 'for the purpose of inducing the purchase of sale of such security by others' requirement, cannot remove it from the regulation because once removed, the line between formal transaction and the manipulation caused from the real sales could become blurred, causing constriction on formal transaction. Therefore, in order to protect the good traders, it is important to specifically explore and objecively interpret the 'for the purpose of inducing the purchase or sales of such by others' requirment.