영국의 금융서비스ㆍ시장법상 시장남용행위규제 및 입법적 시사점

• 영문명: Restriction on Market Abuse by the FSMA and a Legislative Suggestion
• 발행기관: 한국사법학회(구 한국비교사법학회)
• 저자명: 오성근(Sung-Keun O)
• 간행물 정보: 『비교사법』比較私法 제14권 제4호, 523~557쪽, 전체 35쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2007.12.30

영문 초록

  The Financial Services and Markets Act 2000 stipulates in detail regulations on market abuse conducted in eight major categories and makes certain that any such violations shall not be immune from both criminal and non-criminal liabilities (Article 118). It is noteworthy that while the UK seems to have taken the approach of placing non-criminal liability by following the rules of the Market Abuse Directive (MAD) of the ED, the ED has adopted much of the approach taken by the pre-2005 version of the Financial Services and Markets Act (or FSMA) of the UK, especially in terms of both regulation structure and content. This also suggests that the regulatory provisions listed in the FSMA provide the theoretical and legal bases for similar laws that later may be enacted by other ED nations.
  As above-elaborated, European countries take the approach of placing non-criminal liability for market abuse and adopting the system of imposing a non-criminal monetary penalty, which is different from the regulatory approach taken in the Capital Market and Financial Investment Business Act of Korea. Korean law adopts a monetary penalty system against any disclosure violations (Article 381) but not against insider trading and market price manipulation.
  The system of imposing a non-criminal monetary penalty is an administrative measure that forces anywindfall profit made through an illegal act to go to the national treasury and prohibits the person who has conducted such an illegal act from claiming the profit as his own, and the purpose of whichis apparently to both enhance social fairness and ensure the effectiveness of the regulatory measures by increasing the preventative ability of the law against such illegal acts. Given the potential issues to be raised by the anti-social and anti-moral nature of market manipulation, this measure shows a difference in terms of intent and purpose from the criminal law imposing punishment on the same criminal act.
  Within this context, it may be necessary for Korea to adopt the approach of the UK of also placing non-criminal liabilities for market abuse in order to ensure the effectiveness of such regulatory provisions of the Capital Market and Financial Investment Business Act of Korea. In doing so, however, caution is called for with respect to the following aspects.
  First. the personnel to be subjected to the system of imposing non-criminal monetary penalty for insider trading may go beyond the concerned employees and/or shareholders of any listed firms and include anyone who has received any crucial information, even on a second hand basis, from such people.
  Second, in deciding the levels of imposed monetary penalty not only the actual amount of windfall economic gains made through such illegal acts but also the expenses spent by the concerned government agency to investigate any specific case may be included in order for the regulatory provisions to be more effective.
  And third, measures to help those victimized by market abuse recover their financial status and procedural rules for the concerned government agency to confiscate windfall economic gains made through the above-mentioned illegal acts may need to be established. And this will allow individual investors who have trusted reports issued by listed firms and bought particular stocks in the market to save time and minimize the economic burden in recovering their financial status.

목차

Ⅰ. 머리말
Ⅱ. 영국법상 시장남용행위규제
Ⅲ. 시장남용행위에 대한 영국 금융감독기구의 권한 및 제재사례
Ⅳ. 자본시장법에 대한 입법적 시사점
Ⅴ. 맺음말
【참고문헌】
[Abstract]

키워드

시장남용행위 EU의 시장남용행위지침 비형사책임 내부자거래 시세조종 정보오용 풍설의 유포 통상적인 시장 이용자 선도금리계약 Market Abuse Market Abuse Directive Non Criminal Liability Insider Dealing Manipulating Misuse of Information Dissemination Regular Market user Forward Rate Agreements