자본시장법상 불공정거래행위에 따른 손해배상청구의 청구인적격에 관한 검토－인과관계요건과의 관계성을 중심으로－

The Capital Market Act stipulates the damage claims for illegal behaviors such as insider trading, market manipulation or other fraudulent acts. Unlike the Civil Act Article 750 which provides for general torts liability claims, the damage claims provisions of the Capital Market Act includes the expressions that seem to limit the standing for the damage claims, which results in various interpretation issues. For the purpose of proper interpretation, we need to examine the legal characteristics of “standing to claim” and the purpose of the standing requirement. As the standing of a plaintiff is generally granted to anyone asserting he or she has a right of claiming performance, “standing to claim” should be regarded as not just standing to sue under the Civil Procedure Act but standing to adjudicate. Also, considering the legislative intent and the text of the Capital Market Act as well as the interpretation of “standing” under the U.S. Securities Exchange Act which was imported to the Capital Market Act, we could conclude that limiting eligible claimants was, not based on policy considerations, but was just purported to indicate that the victims are those who suffers “proximately caused” loss. Therefore, “standing to claim” for the liability for damages under the Capital Market Act is just another expression of “the causation requirement,” and thus should be interpreted to be generally allowed to those who suffers proximately caused loss by illegal behaviors under the Capital Market Act. Whether standing to claim exists turns on whether proximately caused loss exists for each type of illegal behavior stipulated in the Capital Market Act such as insider trading, market manipulation or other fraudulent acts. To determine the existence of proximate causation, in turn, requires comprehensive consideration of various elements including, but not limited to, the purpose and protected interest of the Capital Market Act, the shape of the illegal behavior, the degree of damage as well as the probability of results caused by the illegal behavior. The interpretation of the liability for damages under the Capital Market Act occurs in the area where the Capital Market Act which imported U.S. securities laws meets the Civil law which imported the Continental law. It would be better to make efforts to interpret in line with our Civil law structure rather than directly borrowing the concepts developed in U.S. securities law such as ‘standing’, ‘transaction causation’, ‘fraud on the market’ and so forth in examining the liability for damages caused by illegal behaviors under the Capital Market Act, considering that our legal structure is basically based on the Continental law and the liability for damages is a Civil law issue.