2010년 증권거래법 판례의 회고와 전망

From Dec. 2009 to Nov. 2010, there were several cases by the Supreme Court relating to the traditional issues in securities regulation. They are about civil liabilities resulting from an annual report containing an untrue statement or omitting a material fact, insider trading, and antifraud provision. And the validity of compensation for losses contracted between individuals was treated. Among these cases, I will review the validity of compensation for losses and some points about insider trading. Old Securities Exchange Act provided that securities company, and its director and employees shall not solicitate the investment by means of the promise of compensation for losses. Is the promise valid and enforceable? Does the securities company be able to claim to return the profits? Generally such promise is invalid. But the case ruled that when individuals promised to compensate for losses in investments, the contract is valid. In the insider trading, the questions of who is subject to the trading constraints of the prohibition and what is the material inside information have been ones of the most interesting aspects. The Act provided that the insider or tippee is under an obligation to disclose or abstain. In the hightech and speed society, it is difficult to determine who is tippee or sub-tippee. The case ruled that when someone joined the unlawful insider trading with the tippee, he or she should be responsible for the trading. Another case ruled that the non-public information should be concrete enough to be material. In this paper, the ratio decidendi in these cases will be reviewed and commented.