증권범죄에서 위법성 판단의 실제 ―조사·수사실무와 Market Making의 위법성조각 문제를 중심으로―

Abstract

Unfair transactions such as market manipulation and insider trading in securities markets have been recognized as critical crimes in the capital market, and such illegal conducts have been therefore punished severely. By the way, when it comes to judging whether to enforce provisions such as safe harbors in the Criminal Act to unfair securities transactions, it should be taken into consideration what are criteria by working level, regulators' staff in charge of investigation who find unlawful trading, considering natures from and practices in securities markets. Although safe harbors of the Criminal Act such as self defense, emergency evacuation, victim's consent and the offense allowed by law are applicable to securities regulations, practically only the offense allowed by law is working. Especially, the market making by LP (Liquidity Provider) introduced recently needs a safe harbor provision in the securities law. Besides, in case of system trading by computerized automatic order system, there are considerable difficulties in identifying who has committed or what is the criminal purpose. Therefore criteria in finding illegality are highly desired. This article first analyzes legal stances by regulators' staff and judges in a market manipulation case relating to End Buy. Next it deals with issues in a recent case which seems to be related in unfair trading by LP in the ELW (Equity Linked Warrant) market, and suggest a guideline for legal judgment. Furthermore, the paper attempts to set the legal judgment standards in securities crime overall. Then it explains what such standards are in the United States and Japan. Finally, it suggests several assignments for desirable legal judgment standards under the Capital Market and Financial Investment Services Act, commonly known as "Capital Market Consolidation Act" which is scheduled effective in February 2009. The consensus through discussions and communications between regulators' staff and judges is one of the most important things for better legal judgment standards. On the basis of this consensus, regulators in charge of investigation had better to give detailed guidelines regarding market making, system trading like algorithmic trading, and the anti-fraud provision in the Capital Market Consolidation Act. In addition, the paper suggest a legislative initiative in which a safe harbor is given to market making, and believe that the administrative actions like "civil monetary penalty" or "administrative settlement" are necessary for efficient sanctions by avoiding burdensome trials in courts.