자본시장법상 증권공모시의 행위규제에 관한 고찰 - 미국 증권법과의 비교를 중심으로 -

초록

This Article examines the regulation of the securities offerings under the Financial Investment Services and Capital Market Act (the “Capital Market Act”). The Capital Market Act, which aims to spur financial product innovation and competition among financial institutions, went into effect on February 4, 2009. Like the Securities Act of 1933, the Capital Market Act recognizes specific periods of time that occur in the life of a securities offering, and the regulations are tailored to those time periods: (i) the period before a registration statement is filed (the pre-filing period), (ii) the period after filing but before the registration statement becomes effective (the waiting period), and (iii) the period after effectiveness (the post-effective period). During the pre-filing period, it is unlawful for any person to solicit an offer to buy before a registration statement had been filed with the Financial Services Commission (“FSC”). Unlike the past Korean Securities and Exchange Act, however, the Capital Market Act gives issuers and other parties involved in a sale of securities a safe-harbor rule which itemizes exactly what type of information about an upcoming offering is permitted. During the waiting period, both oral and written solicitation of an offer to buy is permitted, as long as one of the following prospectuses is used for the solicitation: final, preliminary, or summary prospectus. During the post-effective period, issuers or sellers of securities are permitted to accept an offer to buy. Under the past Korean Securities and Exchange Act, the prospectus was distributed to investors, only when personally requested, prior to delivery of the securities. After the enactment of the Capital Market Act, however, the prospectus must always be distributed to investors prior to delivery of the securities. Faced with the internationalization of securities markets, the traditional approach of the gun-jumping regulation under the Capital Market Act should be reconsidered. The reforms are necessary in order to keep up with modern developments in the markets and technology. This Article also reviews the Securities Offering Reform adopted in December 2005 by the SEC to provide helpful insights for Korean law and practice.

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