자본시장법 민사제재 체계의 비교법적 분석과 개선과제 ―미 증권법 민사제재 체계와의 비교를 중심으로―

This paper tries to draw some policy suggestions for the improvement of civil money penalty in the Korean Capital Market Act. In order for this, we review the history of the development of the civil penalty scheme in the U.S. securities regulations focusing on the aftermath of the Securities Enforcement Remedies and Penny Stock Reform Act of 1990 (Enforcement Remedies Act hereafter). Enforcement Remedies Act contributed to fix the shortcomings of ‘all-or-nothing’ type of regulations and then proportionately makes unlawful conducts costly counting the content and degree of offenses, and thereby deters offenses. So the efficiency and effectiveness of securities regulation has been enhanced. Civil money penalty in Korean Capital Market Act is limitedly and narrowly adopted, while criminal penalty overwhelms the act, which is called the criminalization of civil offenses. Most of offenses in capital market motivate for its monetary incentives under the sacrifice of investors. Therefore, civil money penalty rather than criminal penalty may be better measure to deter such misconducts and protect investors, that is, incentive compatible, so needs to expand its scope enough to cover all kinds of civil offenses.