주식 불공정거래행위에 대한 과징금부과기준의 합리적 개선방안

Recently, the financial authorities have published and enforced the Enforcement Decree of the Capital Markets Act and the Regulations on the Capital Markets Investigation Regarding the scope of application of fines and the criteria for calculating fines. However, it is doubtful whether these standards are objective and reasonable reflecting the reality of the regulation of securities unfair practices. First of all, it is doubtful whether the unfair benefit (including unrealized profit) of the calculation of the fines is unpredictable and it is possible to judge the illegality of various types of unfair trading practices. And whether or not the unreasonable gain standard related to the existing penal levy will be applied to the calculation of the administrative penalty, or to replace it with a new standard. In addition, the scope of the causal relationship related to the abstraction of the imposing criteria and the profit obtained by the violation in the case where the unjust gain exists but the output is objectively impossible is a prerequisite for ensuring the effectiveness of the regulation. In order to solve these questions, it is necessary to redefine the meaning of the unjust gain as the criterion for calculating the fines to the meaning of profit and normative meaning. And a reasonable principle is needed to extend and interpret the relevance of the violation (causality). In addition, it is important to develop objective indicators (such as stock prices to be concluded, orders to be concluded, transaction prices, trading profits, and call involvement rates) to judge the illegality of various securities unfair trade practices and charge penalties . In particular, even if the meaning of unfair advantage is interpreted normatively, it is necessary to establish a minimum general standard in order to impose a penalty in cases where the specific amount can not be calculated. This study investigated the above problems.