공매도 법규제의 현황과 과제

Short-selling brings risks as well as benefits to securities market. Among such risks, settlement risk is one of the most important reasons to regulate short-selling. While agreeing that short-selling contributes to more efficient market functioning, regulators have not yet found an effective regulatory tool to secure stability of clearing and settlement. The need for regulating short-selling was clearly demonstrated in the recent financial turmoil where many countries rushed to impose a temporary ban on naked short-selling in 2008. More recently, advanced markets such as U.S. are focusing on maximizing the efficiency of short-selling while reducing settlement risk by reforming regulation, including tighter disclosure of individual position. Reflecting strong concern for short-selling, Korea's regulation prohibits “naked” and exceptionally permits “covered” short-selling. Accordingly, some market participants strongly call for easing of the regulation to vitalize short-selling. Through out the history of American regulation, similar emphasis has been given to both tightening and easing of short-selling regulation, only with different timing. It is notable that IOSCO recommends, on the presence of effective compliance, “flexible regulation”, which contributes to more efficient securities market. This article presents regulatory suggestions, which may enable more effective supervision and enforcement with regard to short-selling within the existing regulatory framework of Korea. First, short-selling regulations, currently existing in different laws and regulations, must be integrated. Second, as the current regulation classifies transactions into three types (naked, covered, non short-selling), it must be indicated by the law that “net position” is a determinant factor for defining short-selling. Third, in line with the current regulation which allows covered short-selling, the concept of “ownership” and “borrowing” must be clearly defined and applied. Fourth, flexible approach must be applied toward pricing regulation since short-selling regulation is only effective in bearish market. Fifth, abusive naked short-selling must be treated as “unfair trading” and equal level of disciplinary measures must be applied.