자본시장 불공정거래행위에 대한 손해배상책임

The regulation of fraudulent trading including insider trading, market manipulation under the Korean Capital Market Act (hereinafter, the "Act") aims to protect investors and promote integrity in the open market. Damage claims are considered to be more effective than criminal or administrative sanctions in deterring fraudulent activities in the capital market. The reason is that defendants are required to disgorge or return their unjust enrichment. As opposed to traditional trading which is known as face-to -face transactions, trading in the capital market consists of deals performed systematically without facing counter-parties. For that reason, it is not appropriate to apply causation, burden of proof and other requirements as required under the Korean Civil Act to the capital market trading. While the Act provides for damage claims for the fraudulent trading, the Act does not have any provisions which stipulate causation or proof of damages. The academics and the courts have attempted to relax such requirements by interpretation. However, for the clarification, it would be necessary to adopt clear provisions regarding causation and damages under the Act. Further, there are several factors which obstacle facilitation of the damage claims such as difficulties in noticing the existence of fraudulent trading, complexities in calculating damages, courts' conservative position in awarding damages. Considering distinct characteristics of trading in the capital market, it would be desirable for damage claims to be supported by public sanctions and to adopt measures to make the damage claims function effectively rather than leaving them in the private sector.