증권법 역외적용의 합리적 기준 및 범위에 대한 연구 ―미국증권법의 불공정거래에 대한 역외적용 사례를 중심으로―

With the growing internationalization of the securities markets, business activities pertaining to the offer, sale, or purchase of securities increasingly transpire in two or more countries. This globalization of the securities markets places a heavier burden upon countries to police improper investment activity because the increase in transnational securities transactions produces grater opportunity to commit securities fraud. Moreover, securities cases laced with foreign elements pose an interpretive dilemma for courts applying the antifraud provisions of securities law. Like this, each country is frequently called upon to apply its securities law to securities transactions that involve foreign parties, and both regulators and legislators are needed to examine and consider the impact of nation　s securities laws in the international context. Questions regarding extraterritorial jurisdiction of securities laws arise whenever a foreign variables, such as a foreign plaintiff or defendant, is involved in securities fraud litigation. Particularly extraterritoriality become an issue in cases when the alleged fraudulent act occurs abroad but has an effect in the country, or the alleged fraudulent conduct occurs in the country but has an effect abroad. When deciding whether to exercise subject matter jurisdiction over a claim brought by a foreign plaintiff alleging securities fraud, a court, as a general rule, applies the effect test, the conduct test or a combination of the two. Under the effects test, a court may exercise jurisdiction based on conduct occurring outside the country that has an effect on the domestic markets or investors. The conduct test allows a court to acquire jurisdiction over acts which occurred in the country, but whose impact is felt outside the court　s territorial boundaries. In light of the delicate international political concerns raised when courts assert jurisdiction over foreign actors or actions, however, courts should be careful to apply the antifraud provisions only when international considerations warrant the exercise of jurisdiction. From the viewpoint of this, a responsible approach to the extraterritorial application of securities law should reflect the following concerns. First, determinations of jurisdiction should reflect the legitimate sovereignty of other nations. Respect for other sovereigns requires that a nation not interfere with the ability of foreign nations to prescribe rules of conduct for its citizens. This principle of comity creates the foundation of the international legal system. Attempts by a nation to unilaterally police ever greater portions of the international financial arena destroy the good will and respect essential to an international community. Second, each country should also consider that extraterritorial application of the antifraud provisions of securities law potentially places foreigners intolerable position of being subject to conflicting regulations. Finally, the courts must shape the extraterritorial application of the antifraud provisions so that decisions are consistent and principled in order to place foreign individuals on notice as to when they face liability under securities law.