공매도 규제의 해석론과 개선과제

Korean Financial Services Commission announced total ban on short selling in Korean stock market on Nov 6, 2023, which was followed by unresolved debate on pros and cons of prohibition of short selling. In addition, Korean government imposed unprecedented amount of administrative fine on global investment banks after long investigation on violation of short selling regulation. This article intends to review and analyze current laws and sub-regulations on short selling from the perspective of ʻinterpretationʼ. First. this article addresses legal issue on the definition of short selling. Korean regulation excludes sale of securities whose ownership is confirmed from the definition of short selling. The securities which are borrowed from other institution should not be included from the concept of ʻsecuritied owned by the sellerʼ. Secondly, there exists some unclear point in applying ʻnet long positionʼ when deciding the definition of short selling. The FSC regulation provides that net long position needs to be integrated in interpreting short selling definition. However, the delegation from FSCMA to the FSC regulation is not clearly articulated, which might bring about consitutionality issue when applying the provision in criminal cases. Thirdly, it needs to be clarified whether securities should be borrowed before executing short selling contract. This issue became the core of debates in punishing global IBs for illegal naked short selling. This article suggests that the National Assembly amend the FSCMA to further clarify interpretative issues. Since new article was promulgated to give criminal sanction regarding short selling violation in recent times, the constitutionality of short selling definition became more important.