미국 증권거래위원회의 증권사기 제재 수단에 대한 고찰 - 불공정거래의 일원적 제재 체계에 대한 문제 의식을 바탕으로

In Korea, in the case of unfair securities trading, the court makes a final judgment if the suspicion is caught through the Korea Exchange’s hearing, the investigation by the financial authorities, the deliberation and resolution of the Securities and Futures Commission, and the investigation and indictment of the prosecutor’s office. As of May 2022, social discussions are underway to introduce a penalty surcharge for unfair securities trading, centering on the revision(draft) of the Capital Markets Act. Discussions on introducing a system to expel those who have engaged in unfair securities trading, such as a ban on the duties of listed companies, from the stock market have not even started. This study intends to provide a theoretical basis for discussing system improvement in Korea by examining the means of sanctions against securities fraud in the United States. In the United States, the Securities and Exchange Commission(hereinafter referred to as the ‘SEC’) may file civil sanctions in the Federal District Court or directly impose sanctions based on its initial decision by the Administrative Law Judge. The SEC’s civil sanctions are ① non-monetary sanctions, such as injunctions, cease-and-desist orders, emergency relief, bars and suspensions, and penny stock bars ② monetary sanctions, such as disgorgement of illicit profits and imposition of civil penalties. If the necessity of criminal punishment is recognized, parallel proceedings conducted by the SEC investigation and the Department of Justice investigation would proceed. The SEC’s sanctions have been continuously expanded since its establishment in 1934. The SEC actively interprets securities laws and federal courts accept these interpretations. These efforts have formed new case law which enables the SEC to counter securities frauds effectively, and Congress supports the SEC’s enforcement of securities laws through legislation. The SEC secures the necessary authority to investigate and sanction securities fraud through this process. This study examines the development history and characteristics of the SEC’s sanctions measures. In order to eradicate unfair securities trading, the financial authorities in charge of the primary investigation should have various sanctioning powers and take appropriate measures depending on the situation. In Korea, unfair securities trading sanctions are limited to criminal penalties and penalty surcharges, and non-monetary sanctions that can expel former unfair securities traders from the stock market are insufficient, making it challenging to respond in a timely and effective manner to securities crimes. In order to improve the system, it is necessary to refer to the United States sanctions measures.