그림자 내부자거래의 규제에 관한 고찰

초록

Shadow insider trading differs from traditional insider trading in that it involves an insider of a specific company trading shares of another company using material non-public information related to his company. However, like traditional insider trading, shadow trading also exploits unfair information asymmetries, undermining market fairness and investor trust. Despite this, actual regulatory cases concerning shadow trading have been scarce across all jurisdictions. Recently, a landmark ruling by a U.S. federal district court holding a defendant liable for shadow trading has sparked diverse discussions on the subject. This Article examines the legal frameworks and regulatory practices concerning shadow trading abroad and reviews relevant issues under the current Capital Markets Act in Korea. Alongside the legal frameworks of the U.S. and the EU, the Capital Markets Act in Korea also appears to contain provisions that can serve as a basis for regulating shadow trading. These are § 178(1)(i), which prohibits unfair trading practices, and § 178-2(1), which prohibits market disturbances. However, unlike § 174, which prohibits traditional insider trading and is composed of relatively clear requirements, the aforementioned provisions have abstract requirements or are relatively imprecise in their formulation. This makes their application to shadow trading potentially cautious. To ensure these provisions adequately address the regulatory blind spot of shadow trading and fulfill their role in protecting investors, reasonable application and interpretation by regulatory authorities and courts are required.

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