자본시장법상 부정거래금지에 관한 소고 －‘부정한 수단, 계획, 기교’와 ‘위계’를 중심으로－

Capital Market and Financial Investment Business Act(CMFIB) §178-1-(1) prohibits “to employ any unfair device, scheme or artifice in connection with the trade and other transaction of financial investment product.” It can be distinguish from U.S. Securities Exchange Act 10(b) and Securities Exchange Commission Rule 10b-5. 10b-5 prohibits deceptive device or contrivance. It is anti-fraud provision. CMFIB §178-1-(2) and §178-2 are the same as that. There is controversy about the "unfair device, scheme, artifice" and "fraudulent scheme". 'Unfair' means to employ any unlawful device or contrivance in connection with transaction of financial investment product. 'Fraudulent scheme' is to use any schemee to defraud. They can be inter- preted broadly. Therefore, it should be considered whether it should apply. CMFIB §178 is a catch-all provision, to deal with abuse that escaped the specific prohibitions of CMFIB §174(insider trading) and 176(manipulative act). Specifically, this paper examines a standard to judgment with several cases.