미공개중요정보이용행위 규제에 대한 소고

Abstract

The Capital Market Act constituted to guarantee a more fair and reliable market trade in capital markets and protect rights of investors controls and regulates the unfair trade practice institutionalized as the single provisions in the Securities Law, as each independent provision, according to the Insider Short-Term Arbitrage Trading Returns(Article 172),the Nonpublic Important Information Use Practice Prohibition(Article 174) the Market Price Manipulation Practice Prohibition (Article 176) and the Unfair Trade Practice Prohibition (Article 178)stipulated in the current law. The law on the Nonpublic Important Information Use Practice Prohibition designed to protect investors from asymmetric information rules that any insider shall not take advantage of nonpublic important information that he or she acquires in the process of exercising his or her rights or carrying out his or her duty, under the intention to trade certain securities or financial investments goods issued by listed corporations, and etc, or induce other people to intervene in these illegal trade actions in a bid to get his or her interests and avoid upcoming loss. Most nations prohibit any insiders from doing ‘nonpublic important information practice’, one of typical unfair trading practice types, in order to establish a fair and reliable culture in capital markets. But, these nations prescribe a little different provision as to ‘targets of such control and regulation’, ‘information on targets of such control and regulation’ and ‘securities to be controlled and regulated’, according to the economic volumes or capital market development. As to categories of such control and regulation, the U. S and Japan take tougher countermeasures against the illegal information use, setting the standard of such control and regulation according to corporate relations, while, the UK and EU take such countermeasures, according to illegal information held. The use of illegal information is set as the standard of such control and regulation in Australia and Germany. The U. S has the longest history of the control and regulations on Insider Trading. The Securities Exchange Commission (SEC) constituted rules on the SEC, in1942, according the Securities and Exchange Act in 1934. As the special legislative bills on the control and regulation on Inside Trading, the U. S institutionalized Insider Trading Sanctions Act in 1984 and Insider Trading Securities Fraud Enforcement Act in 1988. In August 2000, the SEC provided rules of the SEC, 10(b)5-1(b)5-2, in order to prohibit the announcement on information on securities issue corporations and corporate relations and make a more clear definition on the control and regulation on Inside Trading. The U. S prohibits any insiders from taking advantage of nonpublic information,according to rules and cases of the Securities Exchange Act constituted in 1934. As to theories on the control and regulation on illegal information use, there are possession of information theory, fiduciary duty theory and misappropriation theory. The Capital Market Law defines insiders, quasi-insiders, and the primary information receivers and as the targets of the control and regulation on nonpublic important information use. Such law extended the coverage of insiders and covered corporate affiliate employees and negotiators, who sign contracts with listed corporations,as the category of insiders, according to the law related to monopoly and fair trade. But, they are not defined as insiders according to the Securities Exchange Act. Nonpublic information is controlled and regulated on listed corporations’ duties which can have important influences on what investors will determine. Here,information on listed corporations’ duties cannot be stated, in details. But, it can be mentioned that there is information on “Report on Major Duties”, such as finance structure, sale, production and investment plans and any other business areas, required by the Finance Commission and, information on duties on announcement of report required by the KRX. The public purchase and massive acquisitions and disposals on voting stock targeting uncertain majority people are neither controlled nor regulated. Those who violate the control and regulation law on nonpublic important information use shall be subject to criminal and civil liabilities at the same times. Such violators who are subject to administrative sanctions shall be imposed penalty. Some argue that in order to apply the substantial sanction on the regulation violation, penalty should be imposed on unfair trade practice, just as such penalty shall be imposed on finance investors who violate the law related to the announcement of information.