자본시장법상 부적절한 정보제공행위의 규제 필요성: 내부자 오명씌우기 문제를 소재로

초록

By prohibiting use of material nonpublic information in securities trading, the current regulation of insider trading under the Korean Capital Markets Act protects investors and the market. However, it is possible for the regulation to be used in order to disable or constrain the securities trading of another person. For example, the CEO of a company who wants to frustrate a major investor’s pre-arranged plans to sell his shares can deliver material nonpublic information to him. The recipient of such information cannot but refrain from trading because his subsequent trades might impose insider trading risks onto himself. Such strategic tipping could be called as ʻʻinsider tainting.ʼʼ While a few types of insider tainting are either barred under Regulation Fair Disclosure or regarded as breach of fiduciary duty under corporate law, the tainting is not regulated under the Korean Capital Markets Act. Unlike the Korean law, some foreign jurisdictions have addressed the problem of insider tainting. The EU Market Abuse Regulation prohibits unlawful disclosure of inside information, and Japan has amended its Financial Instruments and Exchange Law in regards to tender offers expressing concern about intentional tainting. Information delivery itself increases the possibility of advantageous trading before material information is disclosed, which can impairs the investorsʼ confidence in capital markets. Actually, the Korean Capital Markets Act recognizes the risk of information delivery by providing that certain persons who become aware of information which could affect market prices in the derivatives market in the course of performing his or her duties should not reveal the information. This Article thus proposes that the Korean Capital Markets Act should be amended to regulate ʻʻimproper delivery of information,ʼʼ which arises where a person possesses material nonpublic information and discloses that information to any other person, except where the disclosure is made in the normal exercise of an employment, a profession or duties.

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