다국적 차원의 자본시장법규 집행 - 공적기관에 의한 불공정거래 규제를 중심으로 -

초록

Faced with the internationalization of capital markets, Korea needs to protect its investors and markets by applying the relevant laws extraterritorially. The Financial Investment Services and Capital Markets Act (“Capital Markets Act”) explicitly introduced a new provision recognizing the extraterritoriality of the Act. While Article 2 of the Capital Markets Act comprehensively provides for prescriptive extraterritorial jurisdiction, the enactment of extraterritoriality alone does not guarantee that the Act will apply to cross-border transactions effectively. The effective extraterritorial application of an act is inseparable from the adjudicative and enforcement jurisdiction of the act. Specifically, active investigations and detections by the public regulators might be the first step for enforcing the Capital Markets Act. Unlike domestic regulations, however, multinational enforcement actions outside a regulator’s home country becomes more problematic because of various obstacles. This Article examines difficulties which domestic regulators may confront in enforcing the Capital Markets Act extraterritorially and makes several recommendations for more effective multinational enforcement as follows. First, the Korean regulators should continue to foster cooperation through the IOSCO and provide international markets with the information and tools necessary for successful regulation of cross-border transactions. Second, the principle of dual criminality should be applied in a modified form for the effective mutual legal assistance in criminal matters. Third, there should be a legal device for the domestic regulator to freeze foreign wrongdoer’s assets located outside Korea to repatriate those assets for distribution to defrauded investors in Korea.

키워드