개정 자본시장법상 시장질서 교란행위에 대한 법적 쟁점의 검토

The capital markets act regulates unfair transactions in order to secure soundness and reliability of the capital market. The problem is that the present regulations against unfair transactions are based on criminal punishments, and thus the application of such regulations needs a strict requisite in accordance with the principle of legality. As the case stands, it is difficult to hold unfair traders responsible though they deranged the market order. At this, the capital market act was amended in 2014 with an addition of regulations against market abuse. As regards a disturbance in the use of information, the amended law further expanded people and information to be subject to regulation. Regarding a disturbance in the market value, it does not factor in the purpose of the illegal act and imposes a fine on disturbance. This study reviewed the issues about the regulations introduced into the amended law, through a comparative approach, and looked into the contents. As regards a disturbance in the use of information, it first reviewed i) the concrete concepts and definitions of the information receiver and the subsequent purchaser, the job-related information producer and the information acquisitor, and the unlawful acquisitor. In addition, it reviewed ii) the issues about gravity and confidentiality, i.e., the requisites for regulation. The issues about disturbance in the market value were i) imaginary bidding, ii) wash sale, iii) matched order, and iv) rumoring. In particular, it reviewed whether high-frequent transactions analyzed by an algorithm could be regarded as a market abuse and be subject to regulation.