「자본시장법」 제174조에서 정보의 ‘중요성’ 의미 ―‘중요성’과 관련된 ‘정확성(진실성)’ 문제―

Abstract

In order for the capital market to develop and maintain soundly, there must be a belief that the transactions in it are fair. However, unlike our wishes, there are various types of unfair trade practices in the capital market. Among them, ‘undisclosed important information use’ using asymmetry of information is a representative illegal act that undermines the trust of market participants. In order to regulate this, 「Financial Service and Capital Market Act」 prohibits the use of undisclosed important information in Article 174, and Article 443 of the same Act stipulates criminal penalties for violations of the regulations. However, excessive regulation of information use can cause contraction of transactions, so legislation and application technology is needed to cover the scope of regulation only in certain cases that undermine market fairness. Therefore, our 「Financial Service and Capital Market Act」 defines the so-called ‘important’ requirements of information, and the theories and court precedent embody the contents through cases. Nevertheless, criminal penalties can be applied according to whether or not they are recognized, so there are frequent disputes about whether they meet the ‘important’ requirement in practice, and therefore, in-depth consideration is needed to establish the standard. On the other hand, 「Financial Service and Capital Market Act」 does not explicitly require the ‘truth’ requirement in relation to the ‘important’ requirement. Nevertheless, existing theories and court precedents maintain that “even if the information does not necessarily require objective clarity and certainty, some accuracy should be necessary”. And in the case of using false information, it is excluded from the application of Article 174 of 「Financial Service and Capital Market Act」. However, if this interpretation theory is adhered to, there may be a regulatory loophole for those who use important information that affects investment judgment, and if the application of any regulation other than Article 174 is attempted, unreasonable cases can occur, such as the level of sanction reversed. However, if the information of this regulation is interpreted as including ‘false’, it has the advantage of avoiding such irrationality and concentrating on the essence of the problem in a simpler way.