주목되는 증권선물위원회 의결 두 건에 대한 小考: 간접정범형태의 내부자거래사안과 단기매매차익반환사안

Several years ago, the Securities and Futures Commission of Korea (which is functionally similar to the S.E.C. in the United States) made two remarkable decisions: ①the decision made on February 24, 2010 concerning insider trading (hereinafter, ①decision) and ②the decision made on May 21, 2008 regarding short-swing profit regulation (hereinafter, ②decision). Especially, ①decision is allegedly the first case of insider trading in Korea committed by a principal through an act of a person who is not liable. The author of this article supports ①decision for the following reasons:First, the major defense arguments are not persuasive and the requirements of insider trading crime committed by a principal through an act of a person who is not liable are deemed to be satisfied. Second, the evil character of the defendant's conduct would amount to a breach of the fiduciary duty of a representative director not to discriminate shareholders by favoring one group of shareholders over another. With respect to ②decision, the author of this article evaluates it as a right one on the basis of the following reasons:First, it is in conformity with the Korean Supreme Court decision that the Article 188 (of the Securities and Exchange Act of Korea) on short-swing profit regulation applies when a director or employee holds such position at either the time of initial transaction or the time of matching transaction occurring within a period of not more than 6 months. Second, by applying the Article 188 to a director's or employee's transaction which occurred before he/she assumed office, the Securities and Futures Commission of Korea shows a strong position which is consistent with the legislative intent of the Article 188 to deter insiders from trading on material nonpublic inside information.