자본시장법상 증권사기 관련 신뢰추정법리의 재검토 ―비정형적 투자전략의 시장완전성에 대한 신뢰 여부를 중심으로―

The Presumption of Reliance is a legal principle established in 1988 by the United States Supreme Court in Basic v. Levinson, and also known as the Fraud-on-the- market(FOTM) theory. Through allowing presumption of reliance on fraudulent conduct in securities litigation alleging violations of rule about securities fraud, this legal principle resolves the difficulty of proof of transaction causation on securities exchange that generally occur with indirect manner between various and unspecified individuals. This presumption, however, is premised on the assumption that investors invest in reliance on the integrity of the market (price). In regard of this prerequisite, it is hard to acknowledge that atypical trading strategies, which have been occupying substantial roll in today’s capital markets in both aspects of quality and quantity, such as high-frequency trading, short selling, TRS(CFD) and so on is whether it’s investment decision was depend on the market integrity, even more it was lack of human analysis in the decision. Because South Korea did not accept dual class voting right and the voting market of South Korea is still immature, a demand for TRS(CFD) might constantly increase. And also, it can be able to imagine that the ‘Predatory Trading’ using latency arbitrage and information asymmetry will be carried out on capital markets of South Korea and that high-frequency trading will be prevail, considering that barriers of international capital markets have been lower and network technologies are constantly in progress. So, if such atypical investors are defrauded, the problem of assuming these investors’ reliance(transaction causation), which the reliance should be presumed or not, might be troublesome challenges. Regarding it, whereas FINANCIAL INVESTMENT SERVICES AND CAPITAL MARKETS ACT(CAPITAL MARKETS ACT) of South Korea is recognized to adopt the Basic presumption, the individual rules about securities fraud of CAPITAL MARKETS ACT are not standardized about whether the transaction causation is required for taking a legal action in violation of each rules. Furthermore, while the Courts also can be understanded it embraces FOTM, it can hardly be found that the Courts have covered about whether the existence of reliance of the atypical investors may be rebutted. Moreover, empirical and theoretical studies contending a need for reconsideration of Basic’s presumption in connection with atypical investment strategies are also in short. This situation lacking debate looks considerably different with situation of United States, at which the principle was originated, in US rather there are so many cases and studies unfavorable to Basic reliance. In addition to this problem, securities litigations, especially class action lawsuits, are not well used than differently original expectation because of criticisms of its abuses private and, in that context, uncritical adoption of the Basic principle is being condemned under the reason that it was a major cause to increase the number of securities litigation. To resolve reasonably the problem of abuse of litigation and to protect investors who are original object to protect of Capital Markets Act, the Presumption of Reliance must be modified to fit current reality of capital markets.