자본시장법 제178조 제1항 제2호와 죄형법정주의

To suppress unfair trading practices in the capital market, Article 178 (1) 2. of the Capital Market Act uses the very abstract concept of "False description or omission of important matters". However, since the violation of this provision is punishable by the heaviest penalty among the penalty provisions of the Capital Market Act, Strict interpretation of the requirements of Article 178 (1) 2. of the Capital Market Act is required. Due to this abstract concept, Punishment for crimes of violating the Capital Market Act should not be left to the discretion of the prosecutor's indictment. Regarding the establishment of a crime of violating Article 178 (1) 2 of the Capital Market Act, whether or not it corresponds to an important matter Is a key element that determines its establishment, if no attempt is made to concretize the abstract concept of Paragraph 2 of Article 178 of the Capital Market Act, The defendant will eventually have to prove that he or she "did not make a false description or omission of an important matter," which will directly conflict with the principle of the distribution of the burden of proof in criminal procedure law. For this reason, this paper attempts to concretize each constituent element of Paragraph 2 of Article 178 of the Capital Market Act.I will only mention the key points again. The protected legal interest of Article 178 (1) 2 of the Capital Market Act is basically "Protection of individual investors and the efficiency of the capital market as a market function." Therefore, each individual requirement should also be understood in relation to this protected legal interest. First, there must be a false description or omission. This provision applies to matters related to disclosure, and whether it is false, or in other words, whether it is contrary to objective truth, should be judged by examining the content of the description of a certain document prescribed by the relevant laws and regulations, and the intention of requiring the description. Next, there must be a false description or omission of an "important matter."The importance of an important matter can be judged primarily by the quantitative criterion (qualitative test) of whether or not it exceeds 5% of the total number of voting shares issued, but it is not definitive. What constitutes an important matter should be evaluated from the perspective of whether it is an act that distorts the "market function", which is the protected legal interest of Paragraph 2 of Article 178 of the Capital Market Act, because it is difficult to uniformly determine it only on a simple quantitative basis. Therefore, even if it is a matter that does not meet the quantitative criterion, It is necessary to carefully evaluate whether there are any special circumstances, such as "whether it turns losses into gains or gains into losses", "Whether it is about a core element of management," "Whether it is about compliance with regulatory conditions," "Whether it affects compliance with loan agreements or other contract terms," or "whether it is about management compensation," and whether such special circumstances distort the market function, etc. In that case, even if there is a difference in the description of the fund-raising process of the underwriters of new shares or convertible bonds in relation to the paid-in capital increase, it cannot be considered a "false description or omission of an important matter" because it is difficult to see that it distorts the function of the market, such as its efficiency.In addition, it must be related to the trading of financial investment products, etc. But when combined with the regulatory purpose of Paragraph 2 of Article 178 of the Capital Market Act, it is not all corporate activities that take place in the financial investment product market, but it must be an act that distorts the essential function of the market, such as the pricing of financial investment products.Finally, subjective intent is required. Referring to the interpretation attitude of the US courts, In order to recognize intent, proof of indirect facts or circumstantial facts is required regarding the specific benefits to which the false description or omission is directly linked, In relation to the "motive or opportunity" of the actor.