증권 불공정거래 범죄에 따른 부당이득 산정에서 인과관계 증명의 문제

Illegal gains from unfair trading (insider trading, market manipulation, and general fraudulant scheme transactions) under the FSCMA(Capital Market Act) in criminal cases are important factors in criminal elements of crime and penalty. Until recently, the illegal gains in criminal cases has been calculated in a simple way to deduct the total costs from the gross gains obtained in relation to the offence. Since 2009, however, our courts have been strengthening the principle of accountability and calling for strict proof of causation between the actor's alleged violation and the unjust enrichement. Accordingly, if prosecutors fail to prove this causation beyond the reasonable doubt, the illegal gains will not be granted. In this case, the provisions of the weighted penalty and compulsary forfeit shall not apply to the offense. The prosecution wants to calculate the illegal gains by a widely used financial methodology, such as the event study method, in response to the court's rigorous demand. However, the courts has refused to accept it for the lack of objectivity and credibility of the calculation method. As a result, reasonable punishment for illegal offenders and the recovery of illegal profits are failing. In order to fix and improve these phenomena, it is necessary to first verify the objectivity and credibility of the financial economics calculation method, such as the event study method, as the illegal gains calculation method that can meet the strict requirement of causation under the current law. More fundamentally, it is necessary to seek amendments to the existing law on the calculation of illegal gains, such as the elimination of the connection between illegal gains and penalties, or introduction of statutory presumption.