금융투자상품거래와 전문가의 민․형사상 책임－자본시장법 제178조의 해석을 중심으로－

Financial derivatives and structured financial transaction can be used to hide fraudulent purpose of the related parties. From the historical examples of Enron’s Mahonia transactions using multiple special purpuse companies(“SPC”) and financial derivatives and Lehman Brothers’ Repo 105 transaction, accountants and attorneys provided professional assistance to their client to complete asset-light transaction and de-leveraging purpose. In Korea, derivative transactions like total return swap are frequently used to evade strict regulation under the Fair Trade Act and Financial Services and Capital Markets Act(“FSCMA”). Even though the FSCMA provide relevant provisions on the criminal and civil liabilities regarding the violation of public disclosure rules, they are not sufficient to regulate the professionals who provide necessary assistance to the unfair financial transaction using derivatives and SPCs. Instead, Article 178 of the FSCMA is applicable to the services provided by the professionals because it covers wide scope of financial instrument including and OTC derivatives and there is no specific provision on the subject of the liability unlike public disclosure regime. In this regard, those professional are to be liable under the Article 178 of the FSCMA as a primary actor for unfair scheme or secondary actor for the misstatement or engagement in fraudulent act. From the public policy perspective, limitless extension of liability for secondary actor, which is not imposibble under Korean jurisprudence, bears risk of increas in the trasaction cost and less-optimal supply of professional services in financial market. Accordingly, this article intends to review theory and practice in the United States and Japan to find ways to search for reasonable level of professional liability under the Article 178 of the FSCMA.