공매도(short selling) 규제의 비교법적 고찰

“Short selling” is an act of selling the assets—commonly securities- which the seller does not own at that time. It can be seen as a transaction to gain a profits in anticipation of buying and delivering that assets in the future at a lower price than now. Short selling can be divided into two categories- a “borrowed”(conventional or covered) short selling and an “unborrowed”(naked or ceovered) short selling. In the former the seller borrows assets in advance for future performance, so this transaction is relatively more likely to be fulfilled than the latter. Due to this reason most countries allows “borrowed” short selling to a certain extent. In fact short selling itself has a functional effects in the capital market because it could prevent the overestimate of a securities. On the other hand an “unborrowed” short selling is strictly prohibited because it can be used for abusive acts in market. Furthermore it is very likely to be failed to carry out at the appointed time because the seller does not prepare the securities beforehand. Regulations for short selling include disclosure of trade purpose, sanctions against non-fulfillment, prohibition in emergency condition or dramatic price falling. In addition the debate over practical unfairness is particularly emphasized in Korea because of accessibility to “borrowing of securities” even if when short selling is allowed.