자본시장법 제443조에서의 '내부자거래규제 위반행위로 얻은 이익 또는 회피한 손실액' 산정방법에 대한 小考

Article 443 of the Act on Capital Market and Investment Banking contains the phrase, "the amount of the profit gained or loss avoided as a result of insider trading violations", as a basis for imposing criminal penalties upon insider traders. This article deals with the calculation method of the profit gained or loss avoided causally connected to the insider trading violation by means of the following:First, this article reviews the recent Korean Supreme Court decision, 2004Doh491 and points out a few problems of the Supreme Court decision. Second, this article briefly explains the civil penalty (imposing up to three times the profit gained or loss avoided) in the United States Securities Exchange Act of 1934, section 21A which is the model law of the Korean statutory provision. It also indicates the significant difference between the two countries in burden of proving the profit gained or loss avoided. Third, this article examines the "calculation method of the profit gained or loss avoided" used by the Korean regulatory authorities concerned and then points out several potential problems thereof. This is accomplished in comparison with the calculation method found in the statutory provision, case law and scholarly opinions in the United States.