상장회사의 내부자거래 규제와 정보수령자 책임에 대한 미국의 법리 전개와 최근 판결에 대한 고찰

Since insider trading gives undue personal benefit to the insiding trade and results in losses to the other investors, it is necessary to prohibit it for the purpose of maintaining fairness, ensuring reliability and protecting the general investors. In the U.S., the Security Exchange Act section 10(b) and the Security Exchange Commission (SEC) Rule 10b-5 prohibit fraud in connection with the purchase and sale of any security, and SEC adopted Rule 10b-5 to implement the Security Exchange Act section 10(b). These so-called anti-fraud provisions have been the statutory source of the insider trading restriction. These anti-fraud provisions have thus been the basis for most litigations concerning insider trading. The U.S. federal courts have admitted the prohibition of the insider trading on the ground of the anti-fraud provisions. and have developed legal theories of the Possession Theory, the Fiduciary Duty Theory and the Misappropriation Theory based on the interpretation of the anti-fraud provisions. The insider or an individual receiving information from an insider is also liable for trading securities based on the information. A “tippee” is a person who learns of nonpublic information from an insider. Upon receipt, this person is considered to be a legal, temporary insider. The U.S. federal courts have acknowledged the restrictions on insider trading in recent cases. In particular, the United States v. Martoma (2018), the U.S. federal court admitted that there are many ways to establish a personal benefit and attempted to clarify its views on the requirements for establishing the scope of tipper and tippee liability.