증권거래법상 불공정거래행위 금지규정에 관한 연구 - 사모증권에 대한 적용가능성을 중심으로

• 영문명: Research on the Anti-fraud Provisions on Securities Regulations - Focused on the Covering of Privately Placed Securities Transactions -
• 발행기관: 한국사법학회(구 한국비교사법학회)
• 저자명: 김희철(Hee-Cheol Kim)
• 간행물 정보: 『비교사법』比較私法 제14권 제1호, 501~530쪽, 전체 30쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2007.03.30

영문 초록

  Korean Securities Exchange Act Section 188-4(4) is a so called “catch-all-anti-fraud-provision," which is the counter part of the United States" Securities Exchange Act of 1934 Section10(b) and Rule 10b-5. Unlike the 1934 SEA, however, the provisions of Section 188-4(4) have been regarded as not cover the private placement transaction at all.
  Recently, however, the Korean Supreme Court affirmed that, enacting the provisions of Korean Securities Exchange Act Section 188-4(4), the Congress intended to regulate the private placement deceptive transaction, either.
  Welcoming the Supreme Court"s decision, the author comparatively analyzes the anti-fraud-provisions of the United States and Korea, and suggests that the plaintiff at least, is required to establish some element, such as (1) the company made a false or misleading statement of (2) a material fact (3) in connection with the purchase or sale of security. In addition, the author informs that the U.S. courts have held that the plaintiff must establish scienter, reliance, causation, and damages. Last but not least, the plaintiff may also show that he had standing to bring the suit, which has been interpreted to mean that the plaintiff must have purchased or sold securities.
  The author, also, divides the anti-fraud-provisions into the “objectiveanti-fraud-provisions", in which liability is imposed on any transaction which fits within the literal terms of the statue, and the “pragmatic-anti-fraud-provisions", in which the language of the statute is interpreted to apply in case the transaction in question could possibly lend itself to the types of speculative abuse that the statute was designed to prevent.
  At the ends, besides of all the comparison and analysis, the author suggests the Korean Securities Exchange Acts are to be provided more clearly whether each provision shall cover the private placement transaction or public offering only, the same as the U.S. Securities Exchange Act of 1934 provisions which clearly express that “security on a national securities exchange", or “other than an exempted security"......ect.

목차

Ⅰ. 서론
Ⅱ. 대법원 2006.4.14. 선고 2003도6759 판결
Ⅲ. 사모증권의 경우에도 규제 가능한 불공정거래행위의 검토
Ⅳ. 결론
【참고문헌】
【Abstract】

키워드

공매도 내부자거래 시세조정 사모 불공정거래금지규정 Short Selling Inside Trading Market Manipulation Private Placement Anti-fraud Provisions