미국 연방증권거래위원회의 조사 및 화해 절차에 관한 연구

The SEC investigations begin with tips, complaints, and referrals, and proceed through a preliminary inquiry or a formal investigation, followed by a Wells notice, a Wells submission, and an action memo. When the SEC Division of Enforcement receives tips, complaints, and referrals, and triggers its investigative authority, it initiates a preliminary inquiry or formal investigation. The investigation often begins with an informal preliminary inquiry, and if it is determined that a formal investigation is warranted during the preliminary inquiry, it is converted to a formal investigation by obtaining a formal order of investigation. Making knowingly false statements to a federal official is a crime in and of itself under the federal law, so a peron under investigation must tell the truth to enforcement staff, whether it is a preliminary inquiry or a formal investigation. When the enforcement staff concludes its investigation, he or she will prepare a action memo for submission to the Commission. If the enforcement staff sends a Wells notice to a person involved in an invetstigation before submitting the action memo to the Commission for its authorization, the person may respond with a Wells Submission. However, it is important to think strategically about whether the attorney representing the peron under investigation will actually submit a Wells submission to the Commission. Because a Wells submission requires the submission of facts and legal theories, it may reveal new facts that the enforcement staff was unaware of or may preclude the person under investigation from presenting alternative arguments in the future. As a result, it may not always be in the person's best interest to submit a Wells submission. The enforcement staff then submits an action memo to the Com- mission, which may decide to impose civil penalties or administrative sanctions based on the action memo. Alternatively, the Commission may decide to settle the case, which is how most cases are resolved in practice. While most settlements with the SEC involve "without either admitting or denying the allegations in the Commission's complaint", in certain cases the SEC will require the person under invesetigation to admit the allegations. This has been increasing in recent years, so it is important to note that in some cases, SEC settlements may exclude the "without either admitting or denying the allegations in the Commission's complaint" language. Closing an investigation through a consent order or a settlement with the SEC serves a number of positive functions. Given the recent amendments to the Capital Markets Act that allow for the imposition of monetary penaties for unfair trading, the introduction of a consent order or settlement system should be seriously considered.