시세조종 관련 부당이득에 대한 연구

Under current securities laws of Korea, any profits accrued or loss avoided from market manipulation (hereinafter referred to as “ill-gotten profits”) plays an important role in criminal proceedings as the amount of ill-gotten profits is a crucial element of the criminal offense to decide the extent of punishment for convicted defendants. However, in Korea, current laws and regulations are silent on how ill-gotten profits from market manipulation shall be calculated. In this regard, the securities regulatory body and judicial body (prosecutor and court) of Korea have interpreted that unrealized gains from market manipulation such as the increase in value of the securities owned by convicted defendants should be included in ill-gotten profits without any clear and consistent criteria for its calculation. In their opinion, no “direct” or “appropriate” causal relationship between the offense of market manipulation and ill-gotten profits is required in measuring the amount of ill-gotten profits. Also, they have often considered several market manipulation offenses committed during a period of time by the same offender(s) as one offense and made a rule to aggregate all of the ill-gotten profits of each joint offender and/or accomplice in determining the extent of punishment for convicted defendants. Needless to say, such practices have significantly increased the amount of ill-gotten profits from market manipulation in criminal proceedings. However, the foregoing interpretations and practices could be inconsistent with the fundamental principles of Korean criminal laws, such as the proportion between crime and punishment or a proportional relationship between the seriousness of an offense and the blameworthiness of the offender. No doubt, it is very important to ensure a fair and orderly securities market and protect securities investors, and the securities regulatory body and judicial body of Korea have practical difficulties in regulating unfair and deceptive trade practices, such as market manipulation, and enforcing applicable laws. Nevertheless, the fundamental principles of criminal laws should be maintained. In addition, development of self-sustaining securities market and enhancement of its operational efficiency are essential goals to be achieved, which could be impaired by undue restriction and unreasonable or excessive enforcement. In this connection, this article posits appropriate ways to interpret and implement current securities laws in Korea concerning ill-gotten profits from market manipulation and the need to pursue legislative reform.