자본시장규제와 하이브리드규정: 자본시장법 제178조에 대한 비판적 검토

The hybrid statute refers to a regulation that allows for both civil and criminal sanctions for a violation of a single statute. In a hybrid statute, the requirements for civil and criminal liability are stipulated in the same provision, thus creating overly vague and comprehensive requirements for the liabilities. In Korea, Article 178 of the Capital Markets Act is a typical hybrid statute. The hybrid statute has the advantage of maximizing deterrent effects by imposing multiple sanctions simultaneously and being convenient in legislative procedure. However, it has the limitation of vague and abstract requirements to enable both civil and criminal sanctions in one statute. Furthermore, civil and criminal liabilities apply different principles in terms of guiding ideology, burden of proof, and standard of proof, and these principles may conflict in the case of a hybrid statute. In the United States, Rule 10b-5 is a hybrid statute. However, for criminal punishment, it requires mens rea in a separate statute, and its abstractness is continually affected by common law to maintain predictability and legal stability. In the European Union, although the provisions are comprehensive in form, criminal liability is mandatorily punished only for significant crimes committed intentionally, with exemplary provisions and criteria specified by MAR, and specific judgment criteria are delegated to the European Commission. In Japan, the form, comprehensiveness, and abstractness of the provisions are most similar to Article 178 of the Capital Markets Act, but it is almost never used in practice. The hybrid statute is a legislative form that developed in the United States around the 20th century when excessive authority was granted to independent administrative committees to achieve public regulatory purposes through private enforcement. However, in modern times, where the limits of delegated and administrative legislation are more clearly defined, its legitimacy is questionable. Even if its effectiveness could be recognized in relation to administrative sanctions and civil lawsuits, it is problematic to use it in criminal enforcement without any supplementary measures in our capital market regulation, where the areas of public and private law are traditionally distinguished and the judicial law-making function is almost non-existent. Even if a comprehensive hybrid statute is necessary for effective capital market regulation, it should primarily be used as a basis for administrative sanctions. For criminal punishment, the Korean Supreme Court needs to subdivide the legal requirements precisely, punish only serious violations, and strengthen the recognition of fraudulent intent. Comprehensive hybrid statutes should be avoided legislatively in civil law countries due to concerns about predictability and legal stability. In the meantime, they should be interpreted restrictively by limiting them to significant acts that may grossly harm the efficiency of the capital market and to acts similar to other types of unfair transactions in accordance with the principle of legality.