자본시장법상 불공정거래행위의 규제와 제재수단에 관한 연구 (A Study of Unfair Trading Practices and Regulatory Sanctions on the Capital Market & Financial Investment Business Law)

서지정보

· 발행기관 : 건국대학교 법학연구소
· 수록지 정보 : 일감법학 / 24호 / 341 ~ 382페이지
· 저자명 : 신경희

초록

Capital market & Financial Investment Business law went into effect in February 2009. It supplemented and improved the regulatory framework for unfair trade practices to enhance the credibility of the market and protect investors. Thus, in this paper, the regulation on unfair trade practices in capital market and the legislation of the regulation on unfair trade practices in abroad were reviewed and compared with our legislation and then the improvement plans for the problems relating the regulation on unfair trade practices under the capital markets law were suggested. Financial Services Commission considers to adopt administrative fines for the unfair trading practices in Korea. However, unfair trading such as manipulation and insider trading is serious criminal crime which should be dealt with criminal penalty.
Moreover, there are serious problems in the investigative procedure for these crimes. For example, the evidences collected by administrative agencies are inadmissible in criminal trail and it takes too much time for the administrative procedure. When reforming the investigative procedure, we have to consider these principles. We should be able to use the evidences which are collected at the early stage of the case. The administrative agencies should be able to communicate efficiently with prosecutors from the beginning. The result of the administrative research should be shared with prosecutors. And the rights of the suspect should be protected. While it is ideal to establish a new agency for the investigation of unfair trading,we can use the research official which is already regulated in Capital Markets Act. Adopting the administrative fines without solving these problems of the investigative system would cause bigger problems. The crime investigation for unfair trading would be impossible because the evidences from the administrative procedure are inadmissible at criminal trial. And the high amount of administrative fine should not substitute criminal penalty as its procedure is simple and easy comparing criminal procedure.

영어초록

Capital market & Financial Investment Business law went into effect in February 2009. It supplemented and improved the regulatory framework for unfair trade practices to enhance the credibility of the market and protect investors. Thus, in this paper, the regulation on unfair trade practices in capital market and the legislation of the regulation on unfair trade practices in abroad were reviewed and compared with our legislation and then the improvement plans for the problems relating the regulation on unfair trade practices under the capital markets law were suggested. Financial Services Commission considers to adopt administrative fines for the unfair trading practices in Korea. However, unfair trading such as manipulation and insider trading is serious criminal crime which should be dealt with criminal penalty.
Moreover, there are serious problems in the investigative procedure for these crimes. For example, the evidences collected by administrative agencies are inadmissible in criminal trail and it takes too much time for the administrative procedure. When reforming the investigative procedure, we have to consider these principles. We should be able to use the evidences which are collected at the early stage of the case. The administrative agencies should be able to communicate efficiently with prosecutors from the beginning. The result of the administrative research should be shared with prosecutors. And the rights of the suspect should be protected. While it is ideal to establish a new agency for the investigation of unfair trading,we can use the research official which is already regulated in Capital Markets Act. Adopting the administrative fines without solving these problems of the investigative system would cause bigger problems. The crime investigation for unfair trading would be impossible because the evidences from the administrative procedure are inadmissible at criminal trial. And the high amount of administrative fine should not substitute criminal penalty as its procedure is simple and easy comparing criminal procedure.

참고자료

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