부정거래 규제 수준에 있어서 한국과 미국의 비교법적 고찰 － 골드만삭스 사건과 키코 사건의 처리를 중심으로 －

The KICO case and the Goldman Sachs case have certain similarities while the degree of illegality seems to be larger for the KICO case. The degree of failure to undertake the obligation of description and the issue of deception seem to be greater in the KICO case. In the event of the Goldman Sachs case, there are only three major victim companies while the KICO case has over 500 small and medium companies. The investors inflicted with the damages are mostly vulnerable small and medium companies with the purpose of contracts for hedging as the general investor with much weaker investment experience, knowledge and access to information for the KICO case while the victims are specialized institutional investors and major companies in the Goldman Sachs case that they are virtually uncomparable for the asymmetry with the investors in the Goldman Sachs case. The parties in the KICO contract have the nature of financial consumers, rather than considered as investors. Notwithstanding the foregoing, the Goldman Sachs case has the supervising authority, SEC, undertaken for positive investigation to file the complaint for the criminal fraudulent practice by the US Federal Attorney's Office as well as raising civil lawsuit to impose the fine to distribute it to the investors-victims as the damage compensation with the active intervention in a way of appropriate exercise of the regulatory authority to maintain the order of the securities market and protection of investor. However, the KICO case has displayed conspicuous difference with respect to the exercise of regulatory power for the domestic authority compared to the US SEC in terms of investigation or disposition. With respect to the similar cases, similar rendering of exercising the regulatory power by the authorities would be a way of applying appropriateness of regulations under the global financial market.