내부자거래 규제범위의 확대 - 시장질서교란행위 및 정보전달행위와 거래권유행위를 중심으로 -

초록

The Financial Investment Services and Capital Markets Act (the “Capital Markets Act”) § 174, which is the main provision regulating insider trading, does not regulate all kinds of informationally advantaged trading using material nonpublic information. In principle, § 174(1) prohibits both “traditional insiders” and “temporary insiders” from using “corporate” information which is obtained through their special status. Namely, § 174(1) only bars transactions where one party possesses an informational advantage that public investors may not lawfully overcome, regardless of their diligence or resources. In addition, the Capital Markets Act § 174(2) and (3) exceptionally prohibit outsiders from using only two kinds of market information as follows: (i) information regarding the initiation or discontinuance of a tender offer; and (ii) information regarding acquisition or disposition of stocks in bulk. However, other types of market information affect the securities price as much as corporate information does, and many countries try to regulate the use of market information effectively. The Market Abuse Regulation, which was newly introduced to the Capital Markets Act in 2014, treats market information as regulated one, resulting in plugging the gaps left open in the law of outsider trading under the Capital Markets Act. Having experienced various insider trading cases in which transactions were executed by a third party who was tipped by the insider, Japan has recently amended its Financial Instruments and Exchange Law to regulate information delivery and trading recommendation. In an effort not to impose any undue burden or restriction on legal business activities, Japan cautiously designed the scope of those regulations by introducing the “purpose” requirement and the “trading” requirement. While both information delivery and trading recommendation have a harmful effect on Korean capital markets too, the former activity can be already regulated under the current Capital Markets Act. Thus, this Article proposes that only trading recommendation based on material nonpublic information needs to be prohibited through the revision of the Capital Markets Act.

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