투자권유규제 규범과 사기금지 규범의 연결 규제

The stock market should be limited to the clean hands, where speculation can be allowed but not deception. The moral norm pertaining to stock market applies to both stock dealers and buyers, and is a premise of the market maintained clean and operated fair and effective. The norm needs to be provided to intervene in order to prevent the market from collapsing, when practices arising from unlawful speculative intents are rampant, such as frauds, tricks, contrivances, and cheats. Nowadays integrity of stock market is being challenged not only by familiar malpractices like frauds or embezzlements, but also by new offences including stock-price manipulation and inside trading, which can be visible when stock dealer employs to take in investor who is in asymmetrically less informed; this calls for a legal provision which is both comprehensive and effective. A comprehensive norm regulating fraud is provided by Art. 178 of the Capital Market and Financial Investment Service Act, which features too comprehensive regulatory a structure to avoid usage of general, abstract, and non-specific legal concepts in the stipulation, e.g., unjust scheme, device, artifice, or cheat. But offenders of stock-related fraud are now subject to both civil and criminal liabilities, and in the criminal case will have a stiffer term sentenced than that of civil fraud case as a more serious offender. There have been some cases in which causation is not assumed nor required according to the Fraud-on-the-Market Theory. With the scope of liability becoming broader, it is necessary to refine the norm while the regulatory provisions may be comprehensive to deal with market environments; the refinement efforts may include directives on judgments, exemplary cases, and development of relevant legal theories. This paper seeks to refine the standard of interpretation of the catch-all-provision of Article 178 that regulates comprehensively the stock-related frauds, and in order to heighten its effectiveness the Art. 178 is examined to see if it can be coupled with the investment recommendation regulation of Article 46 and thereafter, so as to have the enforcement of the two Articles connected. Both the provisions have been brought up for coupling because they provide the same or similar offences, the same legislation purpose, and even the same legal vocabulary. It is considered to regulate the market conveniently and effectively when both the Articles are coupled to be put into force. First the illegal dealings stipulated in Art. 178 are interpreted, on illegal device, scheme, artifice, falsity fraud, and omission fraud, and the Art. 46 and thereafter is interpreted on suitability rule, affordability rule, prohibition of illegal investment recommendation, and explanation liability, and then the common points found in the two Articles are reviewed to see the investment recommendation regulation provision of Art. 46 and thereafter can be seriously violated to become as worse as the deceptive illegal dealings of the Art. 178; thus in case an apparently unsuitable investment is recommended to a client who, lacking in experience, knowledge, and capital, is motivated into the investment through speculation only, by a dealer being with a view to extracting unlawful material gain, this recommendation violates the Art. 46, and this will leat to cheat, device, scheme, or artifice of Art. 178. This means that one of illegal behaviors in Art. 178 may be thought to violate the suitability rule of Art. 46, in which case such general frauds stipulated in art. 178 as illegal device, scheme, artifice are interpreted through Art. 46. The illegal investment recommendation in Art. 49, such as that through presenting false facts or through inducing judgments arbitrary or erroneous on the investor’s part, when seriously committed, should necessarily be examined if such can be identified as misrepresentation fraud, or cheat, deceptive device, scheme, and artifice of Art. 178, and further if such can be enforced under both the Articles. The explanation liability in Art. 47, like the suitability rule, provides an appropriate recommendation; it is a general, objective liability focusing on explaining the product content itself, whereas suitability rule is a personal, subjective liability varying according to investor’s environments. When false or distorted explanation may lead to an illegal gain, or when the falsity of explanation is anything but realizable enough to make the violation obvious, the explanation may be inverted to one of illegal dealing frauds of Art. 178, e.g., misrepresentation fraud, ommission fraud, cheat, illegal device, scheme, or artifice. In other words, one of deceptive illegal dealings of Art. 178 can be an offence of explanation liability of Art. 47, and thus Art. 47 provides an interpretation standard of Art. 178. Regulations based on inter-provisional connections will prove synergistically effective in dealing with ever-increasing, sophisticated stock-related illegal dealings.