자본시장법상 불공정거래와 보호법익 – 시세조종과 부당이득을 중심으로 -

Criminal penalty for market misconduct under the Financial Investment Services and Capital Markets Act 2007 depends on the size of ‘profit gained or loss avoided’. This paper examines 3 issues: firstly, whether the approach of linking criminal penalty to the amount of ‘profit gained or loss avoided’ is reasonable, secondly, whether the concept of ‘profit gained or loss avoided’ means actual and realized profit or not, and thirdly, how to calculate the amount of ‘profit gained or loss avoided’. Firstly, the approach of linking criminal penalty to the amount of ‘profit gained or loss avoided’ is reasonable in that the size of ‘profit gained and loss avoided’ may indicate the violation of market integrity. Secondly, the concept of ‘profit gained or loss avoided’ does not refer to an actual and/or realized profit in that it is a normative standard to indicate the violation of market integrity. However, as it is also determining the upper and lower limits of the criminal penalty for market misconduct, the amount should be calculated on the basis of causation and the principle of liability. Thirdly, the concept of ‘profit gained or loss avoided’ includes unrealized profit as well. However, the calculation of the amount of the ‘profit gained or loss avoided’ should be adjusted to reflect the extent to which the sale or purchase price was increased or decreased by other extraneous matters whether favourable or unfavourable.