2016년 자본시장법 주요 판례의 분석과 평가

In 2016 including late 2015, Korean Supreme Court produced many cases relating to the Financial Investment Services and Capital Market Act(hereinafter "the Act"). This paper aims to review and analyses some cases which are significant for the interpretation and application of the Act. The article 172 paragraph (1) provides the return of insider’s short-swing profit. But it shall not apply to cases prescribed by Presidential Decree. Article 198 of Presidential Decree permits its exceptions where the Securities and Futures Commission deem that there is no likelihood that any material, nonpublic information will be used. The Supreme Court Case has invoked the pragmatic approach which inquires “Did the insider have control over the timing of the transaction? and did the insider have access to inside information?” And the Court has held that when ELS issuer affected the fair price of underlying stocks by the massive sell-off, he/she shall be liable for damages caused by market price manipulation, unfair trading, etc. Also, the Court has ruled that the article 125 liability for material misstatements or omissions contained in the registration statement and prospectus, is available in the initial offering setting, but not available to any person having acquired those shares in the aftermarket. And the Court has manifested the due diligence standard.