2020년 자본시장법 판례 회고

Investor Protection is the key word of the Capital Market Act(the “CMA”). It provides trust with investors so that they could come in the market. 2020 Court Cases on the CMA do confirm its importance. In connection with the insider transaction, in a case where the insider gives the first tipee the important information but he transfers the information to the second tippee without using the information and the second tippee uses such information, the court holds that such an insider is to be interpreted to violate insider trading with other conditions met. I concede that there is a loophole in an insider transaction rule if we take an opposite position against such court holding. However, under the principle of “nulla poena sine lege”, we have to keep tight the meaning of “transfer the information and let the tippee use it.” With respect to the external auditor’s liability, the court holds that if the auditor found some error and asked the client to correct, whether such auditor was negligent or not should be reviewed more carefully. However, the auditor is the one who give his professional opinion in reliance of his due-diligent result. If he found some error, he had to confirm on whether such an error was corrected or not. So I am not sure whether the court’ view is fair or not. As to the underwriter’s liability on false statement of a registration statement, the court holds that conversion of debt into capital of the largest shareholder is material and due-diligence defense by the underwriter is to be denied given that quick review of commercial registry shows the fact. I agree with it. I expect the day when we talk the beginner the principal of one’s own liability taking away concern on him with all investor protection well-functioned.