內部者去來規制의 實定法上 判斷基準에 관한 考察

Our legal system on regulation of insider trading was introduced by revised Securities and Exchange Act in early 1990s, for the purpose of removing asymmetry of information between the parties to securities trading, establishing fair securities market, and securing confidence from investors. Thereafter, such legal system was transferred to the “Financial Investment Services and Capital Markets Act” which was newly enacted concurrently with revocation of Securities and Exchange Act. Therefore, the legal system on regulation on insider trading pursuant to current law comprises the regulation on insider trading utilizing insider information pursuant to Financial Investment Services and Capital Markets Act Article 174 paragraph 1, regulation on insider trading utilizing takeover bid information out of external information pursuant to paragraph 2 of the same article, regulation on insider trading utilizing mass acquisition and disposal information out of external information pursuant to paragraph 3 of the same article, civil claim on compensation for damage by investors on insider traders pursuant to Article 175, and criminal punishment pursuant to article 443 (In case of Japan, provisions on insider trading are enacted at “Financial Instruments and Exchange Act”). However, the problem in application of such legal system rests on the guideline to determine whether any information utilized for trading falls into the category of material information pursuant to Financial Investment Services and Capital Markets Act article 174, notwithstanding whether such information is internal or external. Regarding this, Financial Investment Services and Capital Markets Act article 174 defines material information as “any information that may produce a significant impact on investors' investment judgment” and the determination guideline therefor is “the information that shall have important value for investors in determining whether to hold, purchase or sell relevant shares”. The possible realization hereof shall be assessed in consideration of detailed situation. The next problem is the guideline to determine whether any trading is legal or illegal through which route and based on the information as at which time, i.e. the determination guideline on the “point of determination” as material information, even if such information has been determined as eligible to material information but such material information has been divulged through various routes and at different time and such information was collected and selected for trading. There is no stipulated regulation in this issue in current law. Therefore, dependence on positive law is justified on this issue, whereby even further detailed situation shall be considered for determination. However, determination at positive law may be critical to the principal of the trading behavior, as the result of such determination may cause criminal punishment to the principal. So the definitude shall be mandatorily required even in case of determination guideline on positive law. In this regard, this study reviews the judgment by Tokyo Regional Court (under appeal) on the insider trading case of NEC Electronics·LP Ida Memory Shares etc. etc. to analyze the determination guideline on “determination point as material information” and find out the problems and implications from interpretation and legislative theory thereof.