자본시장법상 정보생성자의 미공개 중요정보 이용행위 규제

초록

Article 174 of the Financial Investment Services and Capital Markets Act (the “Capital Markets Act”), the key provision regulating insider trading, does not penalize all cases of securities transactions based on information asymmetry. In this vein, a simplified assertion has been raised based on Supreme Court Decision 2003Do686, November 14, 2003 (also known as the “Hwaseung Corporation Case”), that a person’s securities transaction on the basis of information created by himself is not subject to the regulation of Article 174 of the Capital Markets Act. This Article reviews: (i) the intrinsic nature of information creation; and (ii) where to draw the line to set the scope of regulation of information creator’s use of nonpublic information. In light of the purport of regulating insider trading, it is appropriate to view a person who creates information as to constitute someone who “becomes aware of” the information under Article 174(1) of the Capital Markets Act. In this sense, Supreme Court Decision 2011Do9457, February 27, 2014 (and its lower court case of Seoul High Court Decision 2011No441, July 8, 2011) should serve as a leading case with regard to the relationship between information creation and information acquisition, as well as the responsibilities of information creators. More importantly, even when information creation and acquisition are treated equally, the structure of Article 174(1) does not lend to ultimately regulating all information creators who trade securities on the basis of information created by themselves. Rather, their ultimate culpability hinges on whether the type of information at issue is subject to regulation, and whether the information creators created the information through their special status. Article 174 of the Capital Markets Act, apparently taking account of the U.S. insider trading regulatory theory, takes a limited regulation approach banning only (i) the use of corporate information acquired through the trader’s special status, and (ii) specific types of market information. Of these, the approach regulating the use of corporate information acquired through the trader’s special status seems appropriate, as penalizing all cases of trading using nonpublic information would likely have a chilling effect on securities transactions. Nor is it desirable in terms of the spread of information or the efficiency of securities market. However, it is necessary to expand the scope of regulation of the use of market information under the Capital Markets Act. The reason is that market information has as much influence on share prices and investment decisions as corporate information, though not directly relevant to the performance of business of the company issuing the security subject to regulation. Global trend favors the regulation of market information usage as well. It is hoped that Article 178-2(1) of the Capital Markets Act, soon to be enforced as one of the provisions regulating market-abusive actions, would serve to regulate the use of such market information within reasonable bounds.

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