집합투자기구의 내부자거래 규제 - 미국의 뮤추얼펀드를 중심으로

Regulation on Insider Trading for Collective Investment Schemes - Focusing on the Mutual Funds of the United States Oh, Sung-keun Since being incorporated into the former Securities Exchange Act in December, 1976, provisions regulating insider trading under the Financial Investment Services and Capital Markets Act (hereinafter the “Capital Markets Act”) have undergone a number of revisions to establish the current framework under Article 174 of the Capital Markets Act. This article: (a) first discusses Article 10(b) of the U.S. Securities Exchange Act of 1934 and SEC Rule 10b-5, both of which seem to have affected the interpretation by market participants of Article 174 of the Capital Markets Act of Korea; and (b) examines the attitude of U.S. courts with regard to insider trading in mutual funds. Although U.S. courts have held that the fiduciary duty and misappropriation theories are valid bases for regulating insider trading, as represented respectively in the cases of Dirks (1983) and O’Hagan (1997), they have been quite reluctant to apply these traditional theories to cases involving insider trading in mutual funds. Such position was even more pronounced in cases where the broker is not in an informant-recipient relationship with a mutual fund, for instance when the broker traded based on mutual fund arbitrage, portfolio information, or redemption information. The rationale behind U.S. courts’ passive approach is their observation that: (a) access to insider information on a mutual fund’s holdings by itself is insufficient to ensure successful insider trades of shares issued by the fund; (b) the fact that by law a mutual fund’s share price is determined by the fund’s net asset value per share each business day makes it quite difficult for anyone to profit from trading mutual fund shares on insider information; and (c) the public is in a position to gain considerable knowledge of a mutual fund’s operation by their access to key information on a mutual fund’s holdings, such as net redemptions and decrease in net asset value, through the fund’s prospectus and reports, as well as numerous investor magazines and newsletters covering such funds. Such stance taken by U.S. courts is reaffirmed in the recent Heartland Fund case (2014). In regulating insider trading by applying Article 174, on insider trading, and Article 178(2), on prohibition of activities likely to cause fluctuation in the marketplace, to cases involving insider trading in collective investment schemes, Korean courts may well take account of the aspirations demonstrated in U.S. court precedents. The reason is that in Korea, there has scarcely been any filing of a lawsuit involving conventional insider trading in a collective investment scheme, nor any case reported thus far involving arbitrage activities of a collective investment scheme, use of confidential information of portfolio holdings, or inside information on redemption of a collective scheme. Subjecting all financial investment companies to a “one size fits all” approach under the Capital Markets Act may inevitably lead to over-regulation. To address such a problem, it is necessary to advance an interpretive theory with regard to collective investment schemes and their securities, as distinct from that applicable to regulation of insider trading in other types of corporations and their securities.