자본시장법상 공매도(Short Sale)의 법적규제에 관한 고찰 -공매도의 잔고보고, 공시 및 위반행위자에 대한 조치 중심으로-

In spite of the information asymmetry between individual and institutional investors and the issue of fairness of the structure of securities lending and borrowing, the cases of naked short selling and covered short selling have often been observed in the securities market in Korea. Accordingly, individual investors have increasingly been dissatisfied with the securities market structure. In particular, short selling in the securities market has been dominated by institutional investors, and individuals are relatively disadvantaged in the process of securities borrowing due to credit risks and settlement management. Therefore, the securities market where the short selling takes place is criticized as a ‘unlevel playing field’ where fair game rules do not apply. Despite these problems, short selling is allowed in major countries like United States in terms of investment strategy and risk management. In Korea, naked short selling is prohibited while covered short selling is permitted, to be competible with the global standards. Under the Financial Investment Services and Capital Markets Act, it is mandated to restrict the short selling, make a report and disclosure of balance of short selling, in order to facilitate the functions of short selling such as price discovery, liquidity enhancement, etc. and reduce the risk of price declines and other dysfunctions of short selling. And the institutions in charge of regulating short selling including the Financial Services Commission, Financial Supervisory Services and Korea Exchange are implementing short selling-related measures such as quotation classification display, up-tick rules and strengthened trust management, through relevant regulations such as the Regulations on Financial Investment Business, Business Regulations of KOSPI market and KOSDAQ market. In addition, these agencies disclose short-sale investment reference materials as a precautionary measure while, as a follow-up measure, reinforcing monitoring, surveillance and investigations of violations of short selling regulations. Especially, those who violate the short selling regulations are imposed of administrative fines or member fines of the Korea Exchange. The ongoing increase in the violation of short selling despite the tightening of regulations on short selling is believed to be due to the low level of sanctions against the offenders and insufficient regulatory system. Moreover, in relation to the breach of short sale, it depends on sanctions after the fact rather prior prevention. Therefore, it is important to establish a dedicated system for securities lending and borrowing that allows investors to be aware of short selling before submitting a sell order. However, the current order system cannot prevent intentional unfair trading orders to avoid short selling regulations because investors can enter their short-selling orders on their own discretion. In addition, financial investment companies who intermediate orders can check the balance of individual investors’ sales accounts, but it is difficult to check the balance of sales accounts of institutional investors and foreign investors who usually deposit their securities in custodian banks. As such, there is always likelihood that the naked short selling will occur because institutional investors can submit short-selling orders without holding securities. Moreover, even in the case of borrowing securities from the borrowing and lending brokerage firms, it is impossible to confirm whether the borrowing contract is duly established or to check the authenticity of the borrowing contract. Therefore, in order to eliminate discrimination and distrust among investors and to promote fair market and reasonable price formation, it is necessary to minimize the problems associated with the systems of balance-check and disclosure of short-selling, surveillance and investigation of unfair trades, etc.