자본시장법상 단기매매차익 반환제도와 향후 운용방향에 대한 검토 - 대법원 2010.8.19. 선고 2007다66002 판결의 평석을 겸하여 -

Article 172 of Financial Investment Services and Capital Markets Act (‘FISCMA’) in Korea requires company insiders to return any profits made from the purchase and sale of company specific securities if both transactions occur within a six-month period. These short-swing profit rule was implemented to prevent insiders, who have greater access to material company information, from taking advantage of information for the purpose of making short-term profits. However, recently, new legal issues for short-swing profit rule have occurred in connection with transaction of hybrid financial instruments or derivatives, and the rapid change of exchange rate. Some commenters question that given the development of the general insider trading regulations under article 174, and the substantial limitations of article 172 in preventing insider trading, is the article 172 needed? Some critics also argue that the function of article 172 would appear to be to impose unjust liability upon entirely innocent persons. However, I believe that article 172 has a “symbolic significance” in the war against insider trading because the insider trading scandals may have shaken investors’confidence in the stock market. Article 172 still serves important public policy purposes by removing the temptation for corporate officers by removing the temptation to profit from short-term price fluctuations, and penalizing the use of inside information. Part Ⅱ discuss new legal issues for short-swing profit rule, recently,which have been brought up. Parts Ⅲ then present a real case which was rendered recently by Korean Supreme Court, and analysis concept, method of calculation for short-swing profit. Lastly, Part Ⅳ of this Article discuss whether article 172 violate the Less Restrictive Alternative Principle under Constitution, and future operational means.