내부자거래의 구성요건인 중요정보의 성립시기 - 결정사실을 중심으로 -

Abstract

The most important element that will be decisive for insider σading requirements is the formation time of nonpublic material information. In order to charge the person who knows nonpublic material information of his corporation or who buys or sells based upon company owned information with illegal insider trading, the essential requirement is an existence of his acts using securities of the corporation after the formation time of material information. It is not necessary that his acts using securities before the formation time of material information. However, whether nonpublic material information form or not, it can not be divided into specific patterns because most of corporations have own decision making systems. Also there are intrinsic limits in the formation time of nonpublic material information because it depends on the circumstances. It is case by case basis Nevertheless, in my point of view, the time to formation of nonpublic material information must be strictly analyzed and intensively applied in order to accomplish fairness and soundness in securities markets. Specifically, there are three solutions as follows. First, the authorities should extend scope of the regulation about the formation time of nonpublic material information within the limits of national p이icy which adopted a subjective investment judgement test and a use test in the prohibition as to it. Second, the standards of magnitude and probability constituting material information should be considered as a significant impact on investors’ investment judgement. Thus, since the higher level of ’magnitude’ can make ψobability ’ to lower level, the earlier formation time of information sho비d be necessary, on the contrary, because the lower level of ’magnitude’ can make ψobability ’ to higher level,the later formation time of information should be necessary. Third, the feasibility, the one of the elements that will d야ide on the formation of material information, should keep not only subjective intentions but also objective grounds. The reason is as follows: When objective grounds such as specific investigations, preparations, and examinations accomplish,subjective intentions will be served as determination factor Although the view quote the determinating criterion from the decision in Supreme Court of Japan, it could not be totally opposed to the decision of Korean Supreme Court since the Court modified its opinion as to the time to formation of material infonnation from negative attitude positive stand in LG Card case. In addition to that, the insider with access to confidential information of his corporation, at point of time when material infonnation which will influence investors to make an investment judgment fonn and grow, sho비d not πade with financial investments relating to material information. It wo비d be in accord with the intent of insider trading sanctions.