자본시장법상 미공개중요정보 이용행위에 있어서 정보수령자의 형사책임에 관한 비판적 검토

Abstract

According to the Capital Market Act, the following actions of using material nonpublic information are banned; first, the use by a company insider or an associate insider, second, the action that a company official gives information to the first tippee so that he can use that information, third, use by the first tippee, fourth, the action that the first tippee gives it to the second one so that he can use it. Theories and judicial precedents don’t regard the fourth type as the case for criminal punishment because the tippee is recognized as a one-sided criminal, so the regulation on an accomplice cannot be applied according to the general rules of the criminal law. In reality, the second and later tippee who gets material nonpublic information from the first tippee, not from an insider or an associate insider, can also perform a prohibited act with it independently or jointly. It’s not reasonable that the Supreme Court and most theories deny that a one-sided criminal is relevant to an accomplice following the general rules depending on different basis of argument such as the legislator’s opinions, to limit the range of punishment. The application of an accomplice following the general rules doesn’t need to be denied even when a criminal without any regulation on his punishment actively participated, rather than simply received the information. With regard to the fulfillment of an accomplice of an one-sided criminal, regulations of particulars should be considered by priority. Therefore, when they are considered preferentially, the possibility that the accomplice regulation following the general rules is applied and one is punished as an accomplice in some cases should be regarded. In addition, it’s unfair that the possibility of punishment is different between when the first and the second tippees are engaged in cooperation and use material nonpublic information and when the second tippee obtains material nonpublic information from the first one and actively uses it. This position not only goes against public feelings of law, but also is deficiency in punishment.