해킹정보이용행위와 내부자거래 -최근 미국의 이론과 판례를 중심으로-

Hacking into a computer system to obtain financial information and trading securities based on that information must be regulated by insider trading regulations because this activity also harms the integrity of securities market and the protection of investors. However, under the traditional insider trading theories developed by U.S. Supreme Court, such as a fiduciary duty theory and the misappropriation theory, liability is premised on a fiduciary’s duty to disclose about material nonpublic information in a securities transaction with corporate shareholders or the source of the material nonpublic information used in the securities transaction. Recently, the Second Circuit Court of Appeal in Dorozhko held that a breach of fiduciary duty was not required for such hacking and trading to be a violation of §10(b) and Rule 10b-5. This decision challenges the common assumption under the traditional insider trading theories. This article examines and evaluates the recent Dorozhko case and its decision by U.S. 2nd Circuit as well as its implication on future Supreme Court rulings. This article then compares Dozozhk to the differing legal system in Korea. Finally, this article maintains the necessity to revise the §174 provision of the Financial Investment Services and Capital Market Act in a direction to encompass outsider’s hacking and trading case in a certain degree.