자본시장법상 불공정거래 과징금 도입과 관련한 쟁점 연구

The regulation of unfair trading in the capital market is centered on criminal punishment for the three major unfair trading. However, prosec utors need to be responsible for proving unfair trading, and it is difficul t to punish unfair trading that did not meet the constituent requirement s. The bill imposing a fine provides an opportunity for the central regul ation of unfair trading to shift from criminal punishment. However, if b oth regulations are combined without principle, the purpose of rapid san ctions deteriorates, so it is necessary to distinguish criminal cases fro m fine cases by preparing case handling standards that reflect the impa ct on the market such as social repercussions, unfair gains, and particip ation rates. The bill for calculating unfair gains makes the concept of unfair gain s, an important component for punishment, but it still did not solve the problem of the prosecutor's strict burden of proof. The enforcement or dinance should exclude subjective judgment factors and minimize the ref lection of stock price fluctuation factors due to external factors to calc ulate clear unfair gains. As a long-term plan, it should focus on transa ction activities in accordance with the purpose of punishment for regula tion of unfair trading and reflect them in the sentencing factor in a sim ple difference method. Even if the unfair trading fine system is introduced, the existing cons tituent requirements will not be expanded, so most of the market abuse provisions should be maintained to regulate the blind spots of unfair tra ding. Information-use-type market abuse should remain as they are di stinguished from undisclosed important information use activities and re gulatory targets. There is no need to maintain the regulation of imagina ry or fake offers because Article 178-2 (2) 4 functions as a comprehe nsive regulation