자본시장과 금융투자업에 관한 법률상 불공정거래행위와 형사책임

Unfair trading practices related to securities transaction are being regulated by the Capital Market Act, Chapter 4, under the title of ‘restriction on unfair trade’, categorized into three types of insider transaction, market- making, and dishonest transactions. Unfair trading practices damage fairness and transparency in contracting, and deepen distrust of capital market. They are consistently occurring, and their occurrence types are diversified. Accordingly, legislators have regulated a heavy punishment on them regarding them as a serious crime, yet with regard to its enforcement, no acceptable outcome has been made. The reasons for this problem can be found not only in the court's mild weighing of an offense, but also in the procedures of investigating a case of unfair trading practices. The current investigation system is complex and has the structure where a prosecution is brought only through duplicate processes. As for the structurally problematic investigation procedure, it's most appropriate to form a consultative group combining one integrated deliberation agency and the prosecution as an investigative agency. In addition, the effectiveness of criminal sanction on unfair trading practices lies in protecting investors participating in a stock market for the purpose of investment through the laws about punishment according to the capital market law, and in judging whether it plays the role of defending the society from crimes or not. To achieve these goals, stronger punishment than the current statutory penalty is being demanded, and as legislative decision corresponding to this, heavy penalty system is being pursued. However, serious criminal punishment is not necessarily effective to suppress crimes. Rather, defining proper penalty for each type of crimes and imposing it clearly will be effective prevention and retribution. For this, the punishment regulations of the capital market law need changes. In other words, they must be revised so that the gain or evaded amount of money from violation may be regarded as the components of a crime and the elements for the assessment of a case, rather than the same kind of crimes are punished differentially depending on the amount of money related to a crime.