단기매매차익반환제도에서 이종증권간 차익산정의 문제 - 미국의 사례를 중심으로 -

The ‘Financial Investment Services and Capital Markets Act’(FSCMA) and rules thereunder has newly applied the short-swing regulation to transactions in which derivatives are included for the first time in the history of securities regulation in Korea. This article reviews and makes some proposals for betterment of the new regulation in Korea with lessons from the experiences of the United States. First, while Korean regulation differentiates transactions between ‘different classes’ of securities and ‘different issues’, but the same classes, of securities, the US regulation simply divides transactions into different classes and same classes of securities. I prefer the US rule to the Korean’s, since the US rule seems to be much easier and there are no definition or scope for the concept of “class” and “issue” in FSCMA and rules. Securities are same when maturity and exercise price are same in the US. Second, I compare the Korean calculation method with the US’ to know how reasonable it is. Although the current Korean method partially has some discord, it altogether can be said reasonable. Third, like the US, exercise of option or derivatives needs to be exempted from the short-swing regulation since acquisition and disposal of option are regarded as acquisition and disposal of underlying securities. Out-of-money(OTM) option, however, should not be granted such an exemption to prevent abuses not improbable. Forth, when option is canceled or expired without any exercise within six months, the premium acquired should be disgorged. Finally, it should be clarified which method is desirable among various calculation methods like first-in/first-out or lowest-in/highest-out etc in transactions which are composed of different classes of securities.