미공개정보의 인식과 이용 및 사전거래계획

초록

Under the legal regime of both the United States and Korea, corporate insiders can avail themselves of an affirmative defense against the charge that they violated insider trading laws when they buy or sell shares in their company’s stock as part of a pre-arranged trading plan entered into when the insider was not aware of material nonpublic information. However, the trading plans introduced at least two loopholes in insider trading regulation as follows. First, trading plans allow insiders to accelerate or delay the release of news to maximize profits for pre-arranged plan trades. Second, trading plans have created an opportunity for insiders to enjoy risk-free options through the selective termination of qualified plans. Multiple studies indicated that insiders trading through these trading plans manage to significantly outperform the market. In addition, illegal insider trading under the guise of trading plans is made easier. A number of changes to the current regulation for trading plans have been suggested. These include requiring varying degrees of disclosure, limiting the ability of trading plan users to terminate their plans, allowing plan transactions during company-imposed trading window periods, imposing a mandatory delay between establishment and trading under a plan, and prohibiting multiple or overlapping trading plans. While some of these suggestions are helpful, this Article suggests that regulators should consider shifting regulatory paradigm from “trading focused approach” to “activity focused approach.” Namely, the insider trading law should regulate all kinds of activities using nonpublic material information whether they involve trading or not.

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